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! 1 N 



WASHINGTON REPOETS 



VOL. 39 




CASES DETERMINED 



IN the: 



SUPREME COURT 



OF 



WASHINGTON 



MAY 8, 1908 — SEPTEMBER 8, 1908 



ARTHUR REMINGTON 

REPORTER 



BANCROFT-WHITNEY CO. 

LAW PUBLISHEBS AND LAW BOOK 8BLLKBS 
SBATTLS AND SAN FRANCISCO. 

1906 



OFFICIAL REPORT 



Published Pursuant to Laws of Washington, 1905, page 330 
Ur 'ar the personal supervision of the Reporter. 



HiA, Su^tJL :??^ tfoU 



PRINTED, BLECTBOTYPED .AND BOUND j 

BY I 

C. W. GOBHAM, PUBLIC PRINTER 



JUDGES 

OF THE 

SUPREME CX)URT OF WASHINGTON 

DUBIMO THB PERIOD COTBBBD UK THIS yOLUMB 



Hon. WALLACE MOUNT, Chief Justice 
Hon. RALPH O. DUNBAR 

Hon. HIRAM E. HADLEY 
Hon. mark A. FULLERTON 
Hon. frank H. RUDKIN 
Hon. MILO A. ROOT 
Hon. HERMAN D. CROW 



i^i 



Attorney General 
Hon. JOHN D. ATKINSON 

Clerk . C. S. Reinhart 



JUDGES OF THE SUPERIOR COURTS 



Hon. W. T. Wabben Adams and Lincoln 

Hon. Mason Ibwin Chehalis 

Hon. R. S. Steineb Chelan, Douglas, Okanogan and Ferry 

Hon. Geobge C. Hatch Clallam, Jefferson and Island 

Hon. W. W. McCbedie Clarke, Skamania, Cowlitz and Klickitat 

Hon. Chester F. Milleb Columbia, Garfield and Asotin 

Hon. Abthub E. Gbtffin King 

Hon. Boyd J. Tallman King 

Hon. Geobob E. Mobbis King 

Hon. Robebt B. Albebtson King 

Hon. a. W. Fbateb King 

Hon. Mitchell Gillla.m King 

Hon. John B. Yaket Kitsap 

Hon. H. B. Rigo Kittitas, Yakima, Franklin and Benton 

Hon. Alonzo E. Rice Lewis, Pacific and Wahkiakum 

Hon. William H. Snell Pierce 

Hon. Thad Huston Pierce 

Hon. William O. Chapman Pierce 

Hon. Geobge A. Joineb Skagit and San Juan 

Hon. W. W. Black Snohomish 

Hon. Henby L. Kennan Spokane 

Hon. Miles Poindexteb Spokane 

Hon. W. a. Huneke / Spokane 

Hon. Daniel C. Carey Stevens 

Hon. Oliveb V. Linn Thurston and Mason 

Hon. Thomas H. Bbents Walla Walla 

Hon. Jebemiah Netebeb Whatcom 

Hon. Stephen J. Chadwick Whitman 



TABLE 

OP 

CASES REPORTED 



Page 

Aberdeen, Wappenstein v 189 

Achey, Hulet v 91 

Adams v. Casey. 37 

Aetna Indemnity Company, Leghorn v 17 

Ahrens v. Seattle 168 

Alaska Steamship Company, Carstens v 229 

Allen V. McAllister 440 

American Bonding Company, Novelty Mill Company v. 244 

American Bridge Company, Bringham v 3 

Anderson v. Turati 155 

Badere, Snider v 130 

Baker, Peterson v 275 

Benson v. Spokane 101 

Berryman, Cusker v 252 

Blake, Zeimantz v 6 

Breeze v. Lone Pine-Surprise Consolidated Mining Com- 
pany 602 

Brennan v. Seattle 640 

Brewer, State ex rel. Hawes v 65 

Bringham v. American Bridge Company 3 

Brooks V. McCabe & Hamilton 62 

Brown V. Gillett 495 | 

Brown, In re 160 

Brown, Nason v 520 

Buchanan v. Laber 410 

Buffalo Pitts Company, Irwin v 346 

Burnett v. Ewing 45 I 

Burrell Construction Company, Vulcan Iron Works v. . 319 
Buttner, Glass v 296 



vl CASES REPORTED. 

Page 

Cameron Lumber Company, Cox v 562 

Cameron Lumber Company, Niekelson v 569 

Caim, National Grocery Company v 596 

Carlson v. White Star Steamship Company 394 

Carstens v. Alaska Steamship Company 229 

Carstens & Earles v. Hine 498 

Cascade Timber Company, Hart v 279 

Case, State ex rel. Nettleton v 177 

Casey, Adams v 37 

Chapman v. Tyson 523 

Christopher, Filley v 22 

Churchill, Lake v 318 

Citizens National Bank, Muir v 57 

Clark V. Eltinge 696 

Clemans v. Western 290 

Coats V. Seattle Electric Company 386 

Codd, White v 14 

Cooks' & Waiters' Union, Jensen v 531 

Cox V. Cameron Lumber Company 562 

Cox, State V 345 

Cox V. Tompkinson 70 

Cusker v. Berryman 252 

Darling, Dempsie v 125 

Davis V. Virges 256 

Dempsie v. Darling 125 

De Pasquale, State v 260 

Dietrich's Estate, In re 520 

Douglas, Noyes v 314 

Draado v. Jobst 425 

Duffy, Mace v 597 

Dumontier v. Stetson & Post Mill Company 264 

Earls, Wood v 21 

Eggert, Prior v 481 

Eltinge, Clark v 696 

Eno V. Sanders 238 

Erickson v. Murlin 43 

Euphrat v. Morrison 311 



CASES REPORTED. vii 

Page 

Ewell V. Tumey 616 

Ewing, Burnett v 45 

Fickett V. Pickett 38 

Filley . v. Christopher 22 

Fischer v. Kittinger 174 

Fleming v. Wilson 106 

Fowler v. Harrison 617 

Frater, State ex rel Drasdo v 594 

Freasure, State ex rel. Bassett v 198 

Furuya, Haner v 1 22 

Gaffner v. Johnson 437 

Gaffney v. Jones 687 

Gillett, Brown v 495 

Glass V. Buttner 296 

Globe Navigation Company v. Maryland Casualty Com- 
pany 299 

Greenus v. Seattle 703 

Gregg, Steviok v 501 

Grissom v. Hofius 51 

Hall V. West & Slade Mill Company 447 

Haner v. Furuya 122 

Harris v. Levy 168 

Harris, State v 702 

Harris v. Tacoma 185 

Harrison, Fowler v 617 

Hart V. Cascade Timber Company 279 

Heinzerling, Novelty Mill Company v 244 

Hillman, Humes v 107 

Hine, Carstens & Earles v 498 

Hofius, Grissom v 51 

Holmes, Yesler Estate v 34 

Hubbard, Wilson v 671 

Huggins V. Sutherland and Philpott 652 

Hulet V. Achey 91 

Humes v. Hillman 107 

Hutchinson, Jordan v 373 



viii CASES REPORTBD. 

Page 

In re Brown 160 

In re Dietrich's Estate 520 

Intea^State Fisheries Company, Krisch v 381 

Irwin V. Buffalo Pitts Company 346 

Jennings, McAvoy v 109 

Jensen v. Cooks' & Waiters' Union 531 

Jobst, Drasdo v 425 

Johnson, Gaffner v 437 

Johnson v. Seattle Electric Company 211 

Jomsland v. Wallace 487 

Jones, Gaffney v. . . ., 587 

Jordan v. Hutchinson 373 

Kent Lumber Company, Vulcan Iron Works v 435 

King County, Mather v 693 

Kirkham v. Wheeler^Osgood Company 415 

Kittinger, Fischer v 174 

Krisch V. Intea>State Fisheries Company 381 

Laber, Buchanan v 410 

La Conner Trading & Transportation Company, Stowe v. 28 

Lake v. Churchill 318 

Lee V. Northern Pacific Railway Company 388 

Leghorn v. Aetna Indemnity Company 17 

Leghorn v. Xydell 17 

Lew, Harris v 158 

Lilly V. Lilly, Eogardus & Company 337 

Lilly Bogardus & Company, Lilly v 337 

Littooy, State v 702 

Lone Pine-Surprise Consolidated Mining Company, 

Breeze v 602 

Lone Pine-Surprise Consolidated Mining Company, 

Pitcher v 608 

McAllister, Allen v 440 

McAvoy V. Jennings 109 

McCabe & Hamilton, Brooks v 62 

McCord V. Rosene 1 

McKnight v. Seattle 516 



CASES REPORTBD. Ix 

Pag€ 

MoPhail, State v 199 

Mace V. Duffy 597 

Maek v. Mack 190 

Mann, State v 144 

Maryland Casualty Company, Globe Navigation Com- 
pany V, 299 

Mather v. King County 693 

Miller v. Moran Brothers Company 631 

Mitchell V. Mitchell 431 

Mitchell Lewis & Staver Company, Snider v 130 

Moran Brothers Company, Miller v 631 

Morrison, Euphrat v 311 

Muir V. Citizens National Bank 57 

Murlin, Erickson v 43 

Mutty, State ex rel. American Freehold-Land Mortgage 

Company v 624 

Nason V. Brown 520 

Xational Grocery Company v. Cann 59(> 

Nelson, State v 221 

Newton, State v 491 

Nichols V. School District No. 10, Pierce County 137 

Nichols Lumber Company, Stratton v •. . . 323 

Nickelson; v. Cameron Lumber Company 669 

Northern Pacific Eailway Company, Lee v 338 

Northern Pacific Railway Company, Slaght v 576 

Northern Pacific Railway Company, Stevick v 501 

Novelty Mill Company v. Heinzerling and The Ameri- 
can Bonding Company 244 

Noyes v. Douglas 314 

Nydell, Leghorn v 17 

O'Brien v. Page Lumber Company 637 

Osborne, State v 548 

O'Toole V. Phoenix Insurance Company 688 

Packard, Williams v 217 

Page Lumber Company, O'Brien v 537 

Pendergast, State ex rel, Martin v 132 



X CASES REPORTED. 

Page 

Peterson v. Baker 275 

Peterson v. Sloes 207 

Philpott, Huggins v 652 

Phoenix Insurance Company, O'Toole v 688 

Pitcher v. Lone Pine-Surprise Consolidated Mining 

Company 608 

Price V. Seattle 376 

Prior V. Eggert 481 

Ritchie v. State 95 

Rosene, McOord v 1 

Ross, State ex rel. Hammond v ; 233 

Ross, State ex rel. Pelton v 399 

Rowell V. Seattle 703 

St Paul Minneapolis & Manitoba Railway Company, 

Smith V 355 

Sanders^ Eno v 238 

School District No. 10 Pierce County, Nichols v 137 

Seattle, Ahrens v 168 

Seattle, Brennan v 640 

Seattle, Greenus v 703 

Seattle, McKnight v 516 

Seattle, Price v 376 

Seattle, Rowell v 708 

Seattle, Shaw v 590 

Seattle Electric Company, Coats v 386 

Seattle Electric Company, Johnson v 211 

Shaw V. Seattle 590 

Showalter v. Sorensen 621 

Sill, Stem v 557 

Slaght V. Northern Pacific Railway Company 576 

Sloss, Peterson v 207 

Smith V. St, Paul, Minneapolis & Manitoba Railway 

Company 355 

Snider v. Badere and Mitchell, Le^vis & Staver Company 130 

Sorensen, Showalter v 621 

Spokane, Benson v 101 



CASES REPORTED. xi 

P<ige 

Spokane Falls & Northern Railway Company, Will- 
iams V 77 

State V. Cox 345 

State V. De Pasquale 260 

State V. Harris 702 

State V. Littooy 702 

State V. McPhail 199 

State V. Mann 144 

State V. Nelson 221 

State V. Newton 491 

State V. Osborne 548 

States Ritchie v 95 

State ex rel. American Freehold-Land Mortgage Com- 
pany V. Mutty 624 

State ex rel. Bassett v. Freasure 198 

State ex rel. Drasdo v. Frater 594 

State ex rel. Gibson v. Superior Court, Pierce County. 115 

State ex rel. Hammond v. Ross 233 

State ex rel. Hawes v. Brewer 65 

State ex rel. Krutz v. Washington Irrigation Com- 
pany 11 

State ex rel. Martin v. Pendergast 132 

State ex rel. Nettleton v. Case 117 

State ex rel. Pelton v. Ross 399 

State ex rel. Tacoma Industrial Company v. White 

River Power Company 648 

Steeb Shipping Company, Tham v 271 

Stem V. Sill 557 

Stetson & Post Mill Company, Dumontier v 264 

Stevick V. Northern Pacific Railway Company 501 

Stowe V. La Conner Trading & Transportation Com- 
pany 28 

Stratton v. Nichols Lumber Company 323 

Superior Court, State ex rel. Gibson v 115 

Sutherland, Huggins v 552 

Sweeney v. Waterhouse & Company 507 

Swift V. Swift 60*0 



xli OASES REPORTED. 

Page 

Tacoma, Harris v 185 

Tham v. Steeb Shipping Company 271 

Thomasj Wiser v 40 

Tompkinson, Cox v 70 

Turati, Anderson v 155 

Tumey, Ewell v 615 

Tyson, Chapman v 523 

Virges, Davis v 256 

Vulcan. Iron Works v. Burrell Construction Company. . 319 

Vulcan Iron Works v. Kent Lumber Company 435 

Wallace, Jomsland v 487 

Wappenstein v. Aberdeeni 189 

Washington Irrigation Company, State ex rel. Krutz v. . 11 

Waterhouse & Company, Sweenej'' v 507 

Western, Clemans v 290 

West & Slade Mill Company, Hall v 447 

Wheeler-Osgood Company, Kirkham v 415 

White V. Codd 14 

White Kiver Power Company, State ex rel. Tacoma In- 
dustrial Company v 648 

White Star Steamship Company, Carlson v 394 

Williams v. Packard 217 

Williams v. Spokane Falls & Northern Railway Com- 
pany 77 

Wilson V. Hubbard 671 

Wilson, Fleming v 106 

Wiser v. Thomas 40 

Wood V. Earls 21 

Yesler Estate v. Holmes 34 

Zeimantz v. Blake 6 



TABLE 

OP 

CASES CITED BY THE COURT 



Page 
Adams v. Chicago etc. R. Co 39 Minn. 286 372 

Ahem v. Ahem 31 Wash. 334 75 

Ahrens v. Seattle 39 Wash. 168 703 

Aldrlch V. Metropolitan etc. R. Co. 195 111. 456 363 

Allen V. Forrest * 8 Wash. 700 409 

Allen V. Northern Pac. R. Co 35 Wash. 221 82, 83 

Allen V. Olympia Light etc. Co 13 Wash. 307 384 

Allend v. Spokane Falls etc. R. Co. . 21 Wash. 324 545 

Andersen v. United States 170 u. S. 481 204 

Anderson v. Blgelow 16 Wash. 198 170 

Anderson v. Inland Tel. etc. Co 19 Wash. 575.. 273. 393, 636, 637 

Anderson v. Nelson Lum. Co 67 Minn. 79 480 

Andrews v. Dyer 81 Me. 104 529 

Ankeny v. Clark 1 Wash. 549 624 

Arlington State Bank v. Paulsen. . . 57 Neb. 717 685 

Armstrong v. Cosmopolis 32 Wash. 110 333 

Ashman v. Flint etc. R. Co 90 Mich. 567 287 

Austin V. Augusta etc. R. Co 108 Ga. 671 368 

Austin V. Ricker 61 N. H. 97 446 

Austrian & Co. v. Springer 94 Mich. 343 344 

Baddeley v. Granville 19 Q. B. D. 423 471 

Bailey etc. Co. y. Landlngham 52 Iowa 415 269 

Balch V. Smith 4 Wash. 497 35 

Balfour-Guthrie Inv. Co. v. Geiger. . 20 Wash. 579 312 

Ball V. Clothier 34 Wash. 299 681 

Bank of Bethel v. Pahquioque Bank 14 Wall. 383 58 

Barkley v. United States 3 Wash Ter. 522 277 

Bartlett v. Stanchfield 148 Mass. 394 100 

Bellingham Bay Land Co. V. Dibble. 4 Wash. 764 35, 36 

Bennett v. Long Island R. Co 74 N. E. (N. Y.) 418 365 

Beseman v. Pennsylvania R. Co 50 N. J. L. 235 372 

Beshoar v. Chappell 6 Colo. App. 323 607 

Bettman v. Cowley 19 Wash. 207 219, 588 

Bier v. Hosford 35 Wash. 544 393 

Biles V. Tacoma etc. R. Co 5 Wash. 509 585 

Birmingham R. etc. Co. v. Allen 99 Ala. 359 468, 472, 480 



xiv CASES CITED. 

Pag€ 
Blair V. Walt 69 N. Y. 113 308 

Blake v. Shriver 27 Wash. 593 36, 317 

Board of Health v. Van Hoesen 87 Mich. 533 668 

Booth V. Spuyten etc. Mill Co 60 N. Y. 487 344 

Bowden v. Johnson 107 U. S. 251 59 

Bowers v. Ledgerwood 25 Wash. 14 45 

Boyd V. Burrel 60 Cal. 280 12 

Brass v. North Dakota 153 U. S. 391 667 

Breeze if. Lone Pine etc. M. Co 39 Wash. 602 614 

Brice v. Bauer 108 N. Y. 428 55 

Britton v. Great Western Cotton Co. L. R. 7 Ex. 130 472 

Bronson v. Kinzie 1 How. 311 58y 

Brown v. Board of Superyisors . . . 124 Cal. 274 369 

Brown v. Chicago etc. R. Co 102 Wis. 137 214 

Brown v. Davis 36 Wash. 135 159 

Brown v. Gillett 33 Wash. 264 495 

Brown v. Seattle 6 Wash. 35 358, 362 

Brown v. Tabor Mill Co 22 Wash. 317 273, 393 

Browne v. New York etc. R. Co. . .158 Mass. 247 507 

Browne v. Siegel, Cooper & Co 191 111. 226 478, 480 

Budd V. People of New York. . . . . .143 U. S. 538 667 

Bullion etc. M. Co. v. Eureka Hill 

M. Co 5 Utah 151 119 

Bullivant v. Spokane 14 Wash. 577 393 

Burrows v. Kimball 11 Utah 149 277 

Cain V. Furlow 47 Ga. 674 76 

Campbell v. Wade 132 U. S. 34 409 

CampbellsYille Lum. Co. v. Brad- 
lee 96 Ky. 494 344 

Camblos v. Philadelphia etc. R. Co. Fed. Cas. No. 2,331 606 

Canadian etc. Trust Co. v. Blake. . 24 Wash. 102 220 

Capehart v. Foster 61 Minn. 132 26 

Carlson v. Wilkeson Coal etc. Co. . 19 Wash. 473 90 

Carroll v. Wisconsin Cent. R. Co. . 40 Minn. 168 372 

CaUett V. Young 143 111. 74 461 

Central Pass R Co. v. Bishop 9 Ky. Law 348 84 

Central Union Tei. Co. v. State 110 Ind. 203 118 

Chamberlain v. People ,. . 23 N. Y. 85 227 

Chemical Nat. Bank v. Hartford 

Dep. Co 151 U. S. 1 59 

Chicago V. Union Stock Yards 164 111. 224 364 

Chicago City R. Co. v. Bngel 35 111. App. 490 84 

Chicago Packing etc. Co. v. Rohan. 47 111. App. 640 480 

Child V. Morgan 51 Minn. 116 682 

Christiansen v. Pacific Bridge Co. . 27 Wash. 582., 285 

Clark V. Commonwealth 123 Pa. St. 555 204 



CASES CITED. xv 

Page 
Clark V. Nash 198 U. S. 361 670 

Clarke v. Bltlnge 38 Wash. 376 697 

Cleveland etc. R. Co. v. Baker 91 Fed. 224 480 

Clukey v. Seattle Elec. Co 27 Wash. 70 87 

Cochrane v. Boston 4 Allen 177 2 

Cockbum v. Ashland I>um. Co 54 Wis. 619 344 

Cogswell V. West Street etc. R. Co. 5 Wash. 46 87-89 

Coleman v. St. Paul etc. R. Co 38 Minn. 260 278 

Columbia etc. Bridge Co. v. Geisse. 35 N. J. L. 558 372 

Commonwealth v. Wood 4 Gray 11 224 

Continental Nat. Bank v. National 

Bank 50 N. Y. 575 309 

Cook V. Stimson Mill Co 36 Wash. 36 285 

Corliss V. smith 53 Vt. 532 55 

Costello V. Burke 63 Iowa 361 599 

Crease v. Babcock 23 Pick. 334 59 

Crippen y. Chappel 35 Kan. 495 685, 688 

Criss V. Seattle Electric Co 38 Wash. 320 '6b6 

Oriswell v. School District 34 Wash. 420 54 

Cully V. Northern Pac. R. Co 36 Wash. 241 638 

Curry r. Chicago etc. R, Co 43 Wis. 665 478 

Dana v. Valentine 6 Met. (Mass.) 8 127 

Danuser v. Seller & Co 24 Wash. 565 393 

David V. Williamsburgh etc. Ins. Co. 83 N. Y. 265 529 

Davis V. Ford 15 Wash. 107 351 

Davis V. Tacoma R. etc. Co 35 Wash. 203 258 

Davis V. United States 165 U. S. 373 204 

Davis Coal Co. v. Polland 158 Ind. 607 450 

Dean v. Oregon R. & Nav. Co 38 Wash. 565 113 

Decker v. Evansville etc. R. Co. . .133 Ind. 493 372 

Becker v. Stimfion Mill Co 31 Wash. 522 %Z6 

DeConcillo v. Brownrigg 51 N. J. Eq. 532 685 

Denio v. Benham 24 Wash. 485 176 

Dennis v. Spencer 45 Minn. 250 322 

Denver v. Bayer 7 Colo. 113 371 

Denver etc. R. Co. v. Wilson 28 Colo. 6 583 

Detroit etc. Ins. Co. v. Aspinwall. . 48 Mich. 238 685 

Detroit etc. R. Co. v. Van Steinburg 17- Mich. 99 287 

Dewey v. Superior Court 81 Cal. 64 120 

Doremus v. Root 23 Wash. 719 506 

Downs V. Seattle etc. R. Co 5 Wash. 778 585 

Drasdo v. Jobst 39 Wash. 425 596 

Dugan V. Chicago etc. R, Co 85 Wis. 614 478 

Dulin V. Pacific Wood etc. Co 98 Cal. 304 120 

Dunklin County v. Dist. County Ct. 23 Mo. 449 407 

Dunsmore v. Central Iowa R. Co. . 72 Iowa 182 372 



xvi CASES CITED. 

Page 
Duperier v. Police Jury 28 La. Ann. 613 629 

Duperier v. Police Jury 31 La. Ann. 709 629 

Durant v. Lexington Coal Min. Co. 97 Mo. 62 451 

Durham y. Spokane 27 Wash. 615 105 

Easson v. Seattle 32 Wash. 405 379 

Eberle v. Carmichael 8 N. M. 696 196 

Bggleston v. Seattle 33 Wash. 671 486 

Eisenmenger v. Murphy 42 Minn. 84 oe$2 

Ellis V. Bardln 36 Wash. 122 113 

E:noch v. Spokane Falls etc. R. Co. 6 Wash. 393 584 

Exchange Bank v. Cooper 40 Mo. 169 2 

Fallsburg etc. Mfg. Co. v. Alex- 
ander 101 Va. 98 666 

Fatjo V. Pflster 117 Cal. 83 183 

First Nat. Bank v. Northern Pac. 

R. Co 28 Wash. 439 514 

First Nat. Bank v. Young 20 Wash. 337 514 

Fischer v. Klttinger 39 Wash. 174 220 

Fleming v. St. Paul etc. R. Co 27 Minn. Ill 480 

Fobes V Rome etc. R. Co 121 N. Y. 505 372 

Folsom V. Moore 19 Me. 252 26 

Foster v. People 50 N. Y. 598 204 

Foster V. Superior Court 115 Cal. 279 120 

French v. First Avenue R. Co 24 Wash. 83 393 

Frisbie v. Whitney 9 Wall. 187 409, 575 

Fyffe V. Fyffe 106 111. 646 528 

Gallagher v. Buckley 31 Wash. 380 86 

Gardner v. Gardner 87 N. Y. 18 119 

Garrison v. New York 21 Wall. 196 589 

Gaudie v. Northern Pac. R. Co 34 Wash. 34 287 

Gay V. New Whatcom 26 Wash. 389 628 

Genet v. Delaware etc. Canal Co. . .113 N. Y. 475 119 

Gibson V. Chouteau 13 Wall. 92 582, 583 

Gilbert v. Greeley etc. R. Co 13 Colo. 501 369 

Gilmer v. Lime Point 18 Cal. 229 668 

Givens v. State 103 Tenn. 648 152 

Glassheim v. New York etc. P. Co. . 34 N. Y. Supp. 69 335 

Goble V. Delaware etc. R. Co Fed. Cas. No. 5.488a 84 

Goe V. Northern Pac. R. Co 30 Wash. 654 287 

Goodin v. EUeardsville Hall Ass*n. 5 Mo. App. 289 26 

Qoodridge v. Washington Mills Co. .160 Mass. 234 480 

Gore V. McBrayer 18 Cal. 583 196 

Graham v. Spokane 19 Wash. 447 628 

Grand v. Michigan Cent. R. Co 83 Mich. 564 480 

Graton etc. Mfg. Co. v. Redel- 
sheimer 28 Wash. 370 385 



CASES CITED. xvll 

Page 
Graves v. Colwell 90 111. 612 528 

Grays Harbor Boom Co. v. Lytle 

etc, Co 38 Wash. 88 496 

Green v. Moore 24 Wash. 241 114 

Green v. Western American Co 30 Wash. 87 450-452, 457, 459 

466, 467, 472 

Greenlee v. Southern R. Co 122 N. C. 977 451 

Griffin V. Ohio etc. R. Co 124 Ind. 326 637 

Griffith V. Strand 19 Wash. 686 94 

Grosz V. Jackson 6 Daly 463 26 

Grunewald v. West Coast G. Co 11 Wash. 478 258 

Guarantee Loan etc. Co. v. Galliher. 12 Wash. 507 227 

Hahnke v. Priederich 140 N. Y. 224 55 

Hanlin v. Chicago etc. R. Co 61 Wis. 515 372 

Hansen v. Seattle Lumber Co 31 Wash. 604 333 

Harrison v. Wallton's Ex'r 95 Va. 721 681 

Hathaway v. Yakima Water etc. Co. 14 Wash. 469 585 

Hawkins v. Front St. Cable R. Co. . 3 Wash. 592 82 

Hawkins v. State 126 Ind. 296 119 

Hay V. Cohoes Co 3 Barb. 42 662 

Hajmes v. Schwartz Co 5 Wash. 433 376 

Head y. Amoskeag Mfg. Co 113 U. S. 9 662 

Healy Lumber Co. v. Morris 33 Wash. 490 663, 666, 668 

Heffner v. County Com'rs 16 Wash. 273 142, 143 

Helmke v. Thilmany 107 Wis. 216 478, 480 

Henderson v. Kansas City 177 Mo. 477 451 

Hendrickson v. Tracy 53 Minn. 404 2(59 

Henry v. Great Northern R. Co. . . 16 Wash. 417 258 

Hewlett T. Shaw 9 Mich. 345 310 

Hill V. Lowman 15 Wash. 503 682 

Hoffman v. American Foundry Co. . 18 Wash. 287 273, 335, 393 

Holmes y. Tennessee etc. R. Co 49 La. Ann. 1465 271 

Holum y. Chicago etc. R. Co 80 Wis. 299 478 

Honor y. Albrighton 93 Pa. St. 475 480 

Hopewell Mills y. Taunton Say. 

Bank 150 Mass. 519 26 

Hovey y. McDonald 109 U. S. 150 117, 118, 121 

Howard y. Ross 38 Wash. 627 176 

Hoyt y. Jaques 129 Mass. 286 686 

Huey y. Police Jury 33 La. Ann. 1061 630 

Hulet y. AChey 39 Wash 91 319 

Hull y. Vlnlng 17 Wash. 352 692 

Humphries y. Sorenson 33 Wash. 563 622 

Idaho, The 93 U. S. 575 514 

Illinois Cent R. Co. y. Grabill 50 111. 241 364 

IngersoU y. Rousseau 35 Wash. 92 129, 130 



xvIII CASES CITED. 

Page 
Ingram v. Wlshkah Boom Co 35 Wash. 191 16 

Inman v. State 65 Ark. 508 227 

In re Coulter 25 Wash. 526 186 

In re Drasdo's Estate 36 Wash. 478 426, 427, 595 

In re Feas' Estate 30 Wash. 51 214 

In re McLaughlin's Estate 4 Wash. 570 226 

In re Murphy's Estate 30 Wash. 9 214 

In re Thompson 36 Wash. 377 702 

In re Tuthill 163 N. Y. 133 662, 670 

Irons V. Manufacturers' Nat. Bank. . 17 Fed. 308 59 

Iverson v. McDonnell 36 Wash. 73 332 

James v. Markham 125 N. C. 145 119 

James v. Woodruff 10 Paige 541 60 

Jamestown etc. R. Co. v. Jones 177 U. S. 125 583 

Jamestown etc. R, Co. v. Jones 7 N. D. 619 584 

Jennings v. Tacoma R. etc. Co 7 Wash. 275 273, 393 

Johnson v. Allen 78 Ala. 387 344 

Johnson v. Puget Mill Co 28 Wash. 515 491 

Johnson v. Seattle Elec. Co 35 Wash. 382 86, 87 

Jones V. State 52 Ark. 345 204 

Jordan v. Benwood 42 W. Va. 312 372 

Jordan v. Seattle 26 Wash. 61 285 

Joyce V. McAvoy 31 Cal. 273 681 

Kakeldy v. Columbia etc. R. Co 37 Wash. 67E 585 

Kaukauna W. P. Co. v. Green Bay 

etc. Co 142 U. S. 254 669 

Keenan v. Edison Elec. etc. Co 159 Mass. 379 480 

Keep V. Walsh 44 N. Y. Supp. 944 271 

Kendall v. Earl. .'. 44 Pac. (Cal.) 791 446 

Kennedy v. Merrimack Paving Co. 185 Mass. 442 335 

Kenosha Stove Co. v. Shedd 82 Iowa 540 227 

Kent V. Quicksilver Min. Co 78 N. Y. 159 614 

Kilpatrlck v. Grand Trunk R. Co. . 74 Vt. 288 451 

Kimball v. Olmsted 20 Wash. 629 381 

King V. Branscheid 32 Wash. 634 171 

Klrwin v. Washington Match Co.. 37 Wash. 285 614 

Knapp V. Order of Pendo 36 Wash. 601 106, 283 

Knisley v. Pratt 148 N. Y. 372 473, 480 

Knox County v. Harsnman 132 U. S. 14 118 

Krieschel v. County Com'rs 12 Wash. 428 142 

Kromer v. Friday 10 Wash. 621 681 

Kyle V. Southern etc. Power Co. . .174 Pa. St. 570 287 

Landgraf v. Kuh 188 III. 484 451 

Langlois v. Dunn Worsted Mills... 57 Atl. (R. I.) 910.460, 474, 480 
Larsen v. Allan Line Steamship Co . 37 Wash. 555 4;i8 



CASES CITED. xlx 

Page 
Larsen v. Oregon R. etc. Co 19 Ore. 240 684 

Legg V. Mayor 42 Md. 203 407 

Leonard v. Ozark Land Co 115 U. S. 465 117 

Limekiller v. Railroad Co 33 Kan. 83 216 

Litchfield Coal Co. v. Taylor 81 111. 590 451 

Lockwood v. Bassett 49 Mich. 546 685 

Lore V. American Mfg. Co 160 Mo. 608 451 

Loughbrldge v. Harris 42 Ga. 500 662 

Louisiana ex rel. Folsom v. Mayor. 109 U. S. 285 589 

Lovlngston ▼. Bauchens 34 III. App. 544 271 

Lowsit V. Seattle Lumber Co 38 Wash. 290 332 

McClemand v. Commonwealth 11 Ky. Law 301 204 

McCormick etc. Mach. Co. v. Jensen. 29 Neb. 102 844 

McCoun V. New York etc. R. Co 50 N. Y. 176 589 

McCoy V. State 27 Tex. App. 415 204 

McCracken v. Hayward 2 How. 608 589 

McCreary v. Rogers. . * 35 Aik. 298 310 

McDonough v. Great Northern R. Co. 15 Wash. 244 545 

McGlnty v. Waterman 101 N. W. (Minn.) 300 480 

McGregor v. Reid 178 111. 464 287 

Mcllhlnney v. Ficke 61 Mo. 329 582 

McKee v. Whltworth a5 Wash. 536 38 

McKeen v. Gammon 33 Me. 187 574 

McRlckard v. Flint 114 N. Y. 222 480 

Magoun v. Illinois etc. Sav. Bank. .Ip U. S. 283 180 

Main V. Schwarzwaelder 4 B. D. Smith 273 26 

Manning v. Tacoma R. etc. Co 34 Wash. 406 213 

Mark v. Superior Court 129 Cal. 1 120 

Martin v. Chicago etc. R. Co 118 Iowa 148 474, 480 

Matthews v. Belfast Mfg. Co 35 Wash. 662 16 

Meeker v. Gardella 1 Wash. 139 496 

Menger v. Schulz 28 Wash. 329 491 

Merced Min. Co. v. Fremont 7 Cal. 130 120 

Metropolitan Board v. McCarthy. . . L. R. 7 H. L. 256 372 

Meyer, Weiss & Co. v. Morgan 51 Miss. 21 446 

Meylette v. Brennan 20 Colo. 242 196 

Miles V. United States 103 U. S. 304 226 

Missouri Pac. R. Co. v. Nebraska. .164 U. S. 403 669 

Monroe Mill Co. v. Menzel 35 Wash. 487 16, 17 

Monteith v. Kokomo Wood Enamel- 
ing Co 159 Ind. 149 450 

Moore v. Brownfleld 7 Wash. 23 36 

Moore v. Brownfleld 10 Wash. 439 o6, 309 

Morgan v. Railroad Co 96 U. S. 716 309 

Morgan v. Railway Co 64 Iowa 589 371 

Morley v. Lake Shore etc. R. Co. . .146 U. S. 162 589 

Morrison v. Morrison 25 Wash. 466 681 



CASES CITED. 

Page 
Morrow v. State 14 Lea 484 153 

Mountain Copper Co. v. Van Buren.123 Fed. 61 334 

Mudgett V. Clay 5 Wash. 103 491 

Mulhem v. Lehigh Valley Coal Co. . 161 Pa. St. 270 480 

Mullen V. Sackett 14 Wash. 100 mlI 

Muller V. McKesson 73 N. Y. 195 55 

Munn V. Illinois 98 U. S. 113 6b7 

Munn V. Wolff Mfg. Co 94 111. 122 480 

Murley v. Ennls 2 Colo. 300 196 

Myers v. Landrum 4 Wash. 762 376 

Nance v. State 17 Tex. App. 389 226 

Narramore y. Cleveland etc. R. Co. 96 Fed. 298... 451, 452, 467-469 

471. 472, 474, 481 

National Bank y. Insurance Co 104 U. S. 54 58 

National Docks etc. R. Co. v. Penn- 
sylvania R. Co 54 N. J. Eq. 167 11» 

Nelson v. Willey Steamship etc. Co. 26 Wash.* 548 547 

Nesbitt V. Northern Pac. R. Co 22 Wash. 698 212 

New Orleans etc. R. Co. v. Allbrit- 

ton 38 Miss. 242 64 

New York v. Pine 185 U. S. 93 586 

NiU V. Comparet 16 Ind. 107 118 

Nitro-Glycerine Case 15 Wall. 524 308 

Noble V. Seattle 19 Wash. 133 212, 213, 214 

Norfor v. Busby ^ . . . 19 Wash. 450 312 

Norris Safe ft Lock Co. v. Clark. . . 28 Wash. 268 322 

North Chicago St. R. Co. v. Cotton. 140 111. 486 84 

Northern Pac. R. Co. v. Hess 2 Wash. 383 87 

Northern Pac. R. Co. v. Murray 87 Fed. 648 585 

Northwestern etc. L. Co. v. Smith. . 15 Mont. 101 686, 687 

Nottage V. Sawmill Phoenix 133 Fed. 979 469-471, 480 

O'Brien v. Commonwealth 89 Ky. 354 204 

O'Connor v. Lighthizer 34 Wash. 152 259 

O'Dowd V. Boston 149 Mass. 443 380 

Olson V. McMurray Cedar Lum. Co. 9 Wash. 500 393 

O'Maley v. South Boston Gas L. Co. 158 Mass. 135 475, 480 

Osborne v. London etc. R. Co 21 Q. B. D. 220 472 

Pacific Supply Co. v. Brand 7 Wash. 357 605 

Palmer v. Laberee 23 Wash. 409 175, 219, 588 

Parmeter v. Bourne 8 Wash. 45 142, 143 

Patrick v. Pote 117 Mass. 297 446 

Patterson v. Hitchcock 3 Colo. 533 309 

Patton V. Texas etc. R. Co 179 U. S. 658 333 

Peabody v. Brown 10 Gray 45 528 

Pearce v. State 1 Sneed 63 2 



CASES CITED. xxi 

Pag€ 
Pedlgo V. Puller 37 Wash. 529 159 

Pennsylyania v. Ravenel 21 How. 103 2 

Pennsylvania R. Co. v. Lipplncott . . 116 Pa. St. 472 366 

Pennsylyania R. Co. y. Marchant. .119 Pa. St. 541 365 

Pennsylyania Co. y. Roy 102 U. S. 451 88, 89 

People y. Barry 90 Cal. 41 204 

People y. Hayes 140 N. Y. 484 228 

People y. Langtree 64 Cal. 256 227 

People y. McNutt 93 Cal. 658 204 

People y. Marble 38 Mich. 117 227 

People y. Schoonmaker 75 N. W. (Mich.) 439 226 

People y. Stokes 71 Cal. 263 226 

Peoples Say. Bank y. Lewis 37 Wash. 344 624 

People ex rel. Griffin y. Lathrop. . .142 N. Y. 113 379 

Philadelphia etc. R. Co. y. Derby. . . 14 How. 468 88, 89 

Philadelphia Mtg. etc. Co. y. Miller. 20 Wash. 607 25 

Philadelphia Mtg. etc. Co. y. Palmer 32 Wash. 455 76 

Pierce y. Connors 20 Colo. 178 271 

Pitcher y. Lone Pine-Surprise etc. 

M. Co 39 Wash. 608 608 

Porter y. Robinson 10 Ky. 253 681 

Port Townsend y. Eisenbeis 28 Wash. 533 628 

Powell y. Ashland etc Steel Co 98 Wis. 35 477 

Presbey y. uld Colony etc. K. Co. . .103 Mass. 1 372 

Prescott y. Puget Sound Bridge 

etc. Co 31 Wash. 177 64 

Price y. Scott 13 Wash. 574 227 

Pronger y. Old Nat. Bank 20 Wash. 618 385 

Queen y. Martin 5 Q. B. D. 34 528 

Raddin y. Arnold 116 Mass. 270 26 

Railroad Co. y. Nestor 10 Colo. 403 371 

Railroad Co. y. Pollard 22 Wall. 241 89 

Railroad Co. y. Yeiser 8 Pa. St. 366 367 

Raught y. Lewis 24 Wash. 47 176, 219 

Raymond y. Johnson 17 Wash. 232 196 

Redding y. Puget Sound etc. Works 36 Wash. 642 64 

Redfleld y. Parks 132 XT. S. 239 583 

Red Riyer etc. R. Co. y. Sture 32 Minn. 95 584 

Reidhead y. Skagit County 33 Wash. 174 333 

Rice y. Stevens 9 Wash. 298 38, 232 

Richards v. Attleborough Nat. Bank.148 Mass. 187 60 

Ricket v. Metropolitan R. Co L. R. 2 H. L. 198 372 

Ridge V. Railroad Transfer Co 56 Mo. App. 133 271 

Rigney v. Tacoma Light etc. Co . . . 9 Wash. 576 17 

Rinard v. Burlington etc. R. Co 66 Iowa 440 372 

Riverside Township y. Newton 11 S. D. 120 277 



xxii CASES CITEF. 

Page 

Robare v. Seattle Traction Co 24 Wash. 577 393 

Roberts v. Northern Pac. R. Co 158 U. S. 1 585 

Robertson v. Blair 56 S. C. 96 681 

Robinson v. Baltimore etc. Min. Co. 26 Wash. 484 212 

Robinson v. Marino 3 Wash. 434 55 

Robinson v. State 84 Ga. 674 205 

Rockingham County etc. Co. y. 

Hobbs 72 N. H. 531 668 

Rogers v. Dill 6 Hill 415 686 

Rosenblatt v. Johnston 104 U. S. 462 58 

Rude V. St. Louis 93 Mo. 408 371 

Russell's Heirs v. Randolph 11 Tex. 460 2 

Ryan v. United States 136 U. S. 68 624 

Ryerson v. Brown 35 Mich. 332 662, 664 

Sackman v. Thomas 24 Wash. 660 227 

Sadler y. LAngham 34 Ala. 311 662 

St. Louis Cordage Co. v. Miller 126 Fed. 495 472, 480 

Salmer v. Lathrop 10 S. D. 216 529 

Sanborn etc. Co. v. Centralia etc. 

Mfg. Co 5 Wash. 150 376 

Sayward v. Carlson 1 Wash. 29 547 

Sayward v. Thompson 11 Wash. 706 209 

Schlawig V. De Peyster 83 Iowa 323 z 

Schneider v. Chicago etc. R. Co 99 Wis. 387 478 

School Trustees v. Stocker 42 N. J. L. 115 zlA 

Schrader v. Bank 133 U. S. 67 59 

Schwarz v. Superior Court. . .' Ill Cal. 106 120 

Searing v. Butler 69 HI. 575 446 

Searle v. Railroad Co 33 Pa. St 57 367 

Sears v. Seattle etc. R. Co 6 Wash. 227 88, 283 

Seattle Nat. Bank v. Carter 13 Wash. 281 351 

Self V. State 6 Baxter 244 152, 153 

Sharp V. Greene 22 Wash. 677 269 

Shaubut V. Railroad Co 21 Minn. 502 371 

Sherman v. Sweeny 29 Wash. 321 94 

Shiver v. United States 159 U. S. 491 574 

Shores v. Hooper 153 Mass. 228 599 

Sims V. Everhardt 102 U. S. 300 424 

Singleton v. Felton 101 Fed. 526 636 

Slpes V. Michigan Starch Co 100 N. W. (Mich.) 447 450 

Sixth Ave. R. Co. v. Gilbert etc. 

R. Co 71 N. Y. 430 119 

Slaughter-House Cases 10 Wall. 273 117, 118 

Smith V. Baker & Sons [1891] A. C. 325 472 

Smith V. Lamping 27 Wash. 624 695 

Smith V. St. Paul City R. Co 32 Minn. 1 84 



CASES CITED. xxlil 

Page 

Smith V. State 46 Ga. 298 152 

Sparf V. United States 156 U. S. 51 204, 206 

Spokane Falls v. Curry 2 Wash. 541 376 

Spokane Falls etc. R. Co. v. Ziegler.167 U. S. 65 585 

State V. Anderson 30 Wash. 14 551 

— V. Bailey 31 Wash. 89 205 

— V. Bufflington 20 Kan. 599 228 

-— V. Clark 30 Wash. 439 180 

— V. Cole 63 Iowa 695 205 

— V. Crotts 22 Wash. 245 263, 264 

— V. Dingee 17 Iowa 232 224 

— V. Dolan 17 Wash. 499 205 

— V. Bstep 44 Kan. 572. 204 

— V. Fetterly 33 Wash. 599 225, 552 

— V. Harris 39 Wash. 702 702 

— V. Hoyt 47 Conn. 518 228 

— V. Lamothe 37 La. Ann. 43 268 

— V. Lane 64 Mo. 319 204 

— V. McCauley 17 Wash. 88 149 

— V. McGilvery 20 Wash. 240 226 

— V. McKinney Ill N. C. 683 204 

— V. Robinson 12 Wash. 349 206 

— V. Schaunhurst 34 Iowa 547 22o 

— V. Sharpless 31 Wash. 191 180 

— V. Surry 23 Wash. 655 155 

— V. Way 5 Neb. 283 224 

— V. Wilson 9 Wash. 16 551 

— V.Wood 124 Mo. 412. 205 

— V. Wood 33 Wash. 290 224, 226 

— V. Young 22 Wash. 273 205 

State ex rel. Barton v. Hopkins 14 Wash. 59 627 

— Bassett v. Freasure 39 Wash. 198 597 

— Boutte V. Judge 28 La. Ann. 547 310 

— Busch V. Dillon 96 Mo. 56 119 

— Byers v. Superior Court. . 28 Wash. 408 121 

— Commercial etc. Co. v. 

Stallcup 15 Wash. 263 121 

— Corbin v. Sup'r Ct 35 Wash. 201 597 

— Davidson v. Gorman 40 Minn. 232 182 

-— Flaherty v. Superior Ct. . 35 Wash. 200 121 

— Fuller V. Sup'r Ct 31 Wash. 96 597 

— Gill V. Byrne 31 Wash. 213 381 

— Gillette v. Sup'r Ct 22 Wash. 496 199, 597 

— Grinsf elder v. Spokane St. 

R. Co 19 Wash. 518 68 

— Mariner v. Gray *. . 4 Wis. 380 409 

— Rochford v. Sup'r Ct 4 Wash. 30 408 



xxiv CASES CITED. 

Page 
State ex rel. Rohde v. Sachs 2 Wash. 373 137 

— Smith V. Board of Dental 

Examiners 31 Wash. 492 702 

— Wallace v. Sup'r Ct 24 Wash. 605 199 

— White V. Board of Com'rs. 23 Wash. 700 407 

Steamboat New World v. King 16 How. 469 88, 89 

Steeples v. Panel etc. Box Co 33 Wash. 359 635 

Stem V. Washington Nat, Bank 14 Wash. 511 436 

Stevens v. West 6 Jones (N. C.) 49 528 

Stokes V. Saltonstall 13 Pet. 181 89 

Stone V. United States 167 U. S. 178 574 

Suksdorf v. Humphrey 36 Wash. 1 316 

Sullivan V. Colby 71 Fed. 460 309 

Summerville v. Summerville 31 Wash. 411 226 

Swain v. Seamens 9 Wall. 254 309 

Swenson v. Osgood etc. Mfg. Co 91 Minn. 509 476, 480 

Swift ft Co. V. Holoubek 60 Neb. 784 287 

Swinburne v. Mills 17 Wash. 611 220 

Tham v. Steeb Shipping Co 39 Wash. 272 636, 6o7 

Thielman v. Carr 75 III. 385 26 

Thomas v. Quartermaine 18 Q. B. D. 685 472 

Thomas v. Wyatt 31 Mo. 188 529 

Thompson v. Allis Co 89 Wis. 523 4/8 

Thompson v. Rathbun 18 Ore. 202 822 

Thompson v. State 28 Ala, 12 2 

Titus V. Larsen 18 Wash. 145 692 

Tootle V. First Nat. Bank 6 Wash. 181 384 

Trutch V. Bunnell 11 Ore. 58 686, 687 

Tyler v. Beacher 44 Vt. 648 662 

Underwood v. People 32 Mich. 1 167 

Union Pac. R. Co. v. Hand 7 Kan. 380 90 

United States v. Bisel 8 Mont. 20 277 

United States v. Elliot 12 Utah 119 277 

United States v. Taylor 8 McCrary 500 206 

Van De Vere v. Kansas City 107 Mo. 83 369 

Van Etten v. Butt 32 Neb. 285 269 

Vamer v. Martin 21 W. Va. 534 665 

Victor Coal Co. v. Mulr 20 Colo. 320 480 

Vollrath v. Crowe 9 Wash. 374 412 

Walt V. Robertson Mtg. Co 37 Wash. 282 268 

Walker v. McNeill 17 Wash. 582 8o 

Wallerich v. Smith 97 Iowa 308 309 

Walsh V. Bushell 26 Wash. 576 94 

Walsh V. Whiteley 21 Q. B. D. 371 472 

Ward V. Springfield Fire Ins. Co. . 12 Wash. 631 12 



CASES CITED. xxv 

Page 

Ware v. McDonald 62 Ala. 81 310 

Washington Cent. Imp. Co. v. New- 
lands 11 Wash. 212 93 

Washington etc. R. Co. v. Osborn. .160 U. S. 103 585 

Waterbury v. Merchants' Union Ex- 
press Co 50 Barb. 157 605 

Watkinson v. McCoy 23 Wash. 372 16 

Webster v. Page 54 Iowa 461 681 

Week V. Fremont Mill Co 3 Wash. 629 393 

Weideman v. Tacoma R. etc. Co. . . 7 Wash. 517 638 

Wells V. American Express Co 55 Wis. 23 514 

Werges v. St Louis etc. R. Co 35 La. Ann. 641 372 

Western Mill etc. Co. v. Blanchard . . 1 Wash. 230 496 

Western Union Tel Co. v. McGill. . 57 Fed. 699 215 

White V. Wittemann Lith. Co 131 N. Y. 631 480 

Whitsett V. Railroad Co 10 Colo. 243 371 

Wiehl etc. Co. v. Robertson 97 Tenn. 458 528, 6^j» 

Wilcox V. Smith 38 Wash. 585 316 

Wilkens v. Wilkerson 41 S. W. (Tex. Civ. App.) 

178 100 

Williams V. Pittock 35 Wash. 271 157 

Williams v. Wagner Co 110 Wis. 456 480 

Wilson V. Northern Pac. R. Co 31 Wash. 67 636, 637 

Wilson V. White 84 Cal. 239 529 

Winsor v. Bridges 24 Wash. 540 407 

Wolferman v. Bell 8 Wash. 140 682 

Woodham v. First Nat. Bank 48 Minn. 67 26 

Woodhurst v. Cramer 29 Wash. 40 38 

Wooding V. Crain 10 Wash. 35 624 

Woods V. Northern Pac. R. Co 36 Wash. 658 393 

Woodward v. Suydam 11 Ohio 361 446 

Wyman v. Johnson 68 Ark. 369 685 

Yarmouth v. France 19 Q. B. D. 647 472 



STATUTES 
CITED AND CONSTRUED 



Pagf 

Constitution, article 1, sections 3, 14 164 

Constitution, article 1, section 16 356, 661 

Constitution, anicle 1, sections 21, 22 164, 203 

Constitution, article 2, section 19 185 

Constitution, article 4, section 16 202 

Constitution, article 7, sections 1, 2 179 

Constitution, article 7, section 9 180 

Constitution, article 21 668 

Code of 1881, section 2086 184 

1 Hill's Code, section 2415 556 

2 Hlirs Code, section 138 214 

2 Hiirs Code, sections 462, 463 175, 218, 219, 588 

Ballinger's Code, section 108 380 

Ballinger's Code, section 342 694 

Ballinger's Code, section 1322 2 

Ballinger's Code, section 1407 253, 255 

Ballinger's Code, section 1408 253 

Ballinger's Code, sections 1410, 1430 254 

Ballinger's Code, sections 1792, 1794 626 

Ballinger's Code, section 1796 627 

Ballinger's Code, sections 2149-2156 409 

Ballinger's Code, sections 2398-2405 141 

Ballinger's Code, section 3846 276 

Ballinger's Code, section 4490 298 

Ballinger's Code, section 4538a 624 

Ballinger's Code, section 4741 517 

Ballinger's Code, section 4805 439 

Ballinger's Code, section 4827 298 

Ballinger's Code, section 4828 212 

Ballinger's Code, section 4880 375 

Ballinger's Code, sections 4911, 4949 54 

Ballinger's Code, section 5051 49 

Ballinger's Code, section 5076 268 

Ballinger's Code, section 5091 375 

Ballinger's Code, sections 5148, 5149 219 

Ballinger's Code sections 5153, 5156 680, 681 

Ballinger's Code, section 5167 345 



J 



xxviii STATUTES CITED AND CONSTRUED. 

Page 

Ballinger's Code, section 5186 259 

Ballinger's Code, section 5255 41 

Ballingers, Code, sections 5503, 5504 76 

Ballinger's Code, section 5518 374, 375 

Ballinger's Code, section 5756 409 

Ballinger's Code, section 5769 408 

Ballinger's Code, section 5800 136 

Ballinger's Code, section 5803 134 

Ballinger's Code, sections 5925, 5927 556 

Ballinger's Code, section 6087 559 

Ballingers' Code, sections 6411-6416, 6460-6469 687 

Ballinger's Code, section 6500, subdivision 7 374 

Ballinger's Code, section 6504 259 

Ballinger's Code, section 6505 134 

Ballinger's Code, section 6523 258 

Ballinger's Code, section 6528 693, 699, 700 

Ballinger's Code, sections 6810, 6812 695 

Ballinger's Code, section 6845 551 

Ballinger's Code, section 6955 203 

Ballinger's Code, section 6959 163 

Ballinger's Code, sections 7230,7231 223 

Ballinger's Code, section 7232 226 

Ballinger's Code, section 7238 223 

Ballinger's Code, section 7252 69 

3 Ballinger's Code, section 2160 404 

3 Ballinger's Code, section 2367 140 

3 Ballinger's Code, section 5927 554 

Pierce's Code, sections 679, 1061 108 

Pierce's Code, sections 2329-2331 521 

Laws 1866, chapter 7, section 6 254, 255 

Laws 1866, chapter 7, section 7 254 

Laws 1866, chapter 8, section 6 254 

Laws 1893, page 462, section 4 98, 99 

Laws 1893, page 462, section 6 98 

Laws 1893, page 462, section 7 98, 99 

Laws 1893, page 462, section 9 98 

Laws 1893 page 462, section 14 99 

Laws 1895, page 26 141 

Laws 1895, page 159, section 2 517 

Laws 1895, page 547, section 46 276 

Laws 1897, page 52 175, 176, 588 

Laws 1897, page 246, section 35 276 

Laws 1897, page 298 234, 236, 238 

Laws 1899, page 77 404 

Laws 1899, page 172 554, 556 

Laws 1901, pages 30, 31, chapter 31, section 3 33 

Laws 1901, page 32 517 



STATUTES CITED AND CONSTRUED. xxix 

Page 

Laws 1901, page 240, chapter 118 171 

Laws 1901, pages 241, 242 187 

Laws 1901, page 314, chapter 152 702 

Laws 1901, page 384 157 

Laws 1903, page 40 449, 452-454 

Laws 1903, page 50 106 

Laws 1903, page 73, chapter 59, section 4 159 

Laws 1903, page 261 419, 420 

Laws 1903, page 290 178, 185 

Laws 1903, pages 293, 294 178 

Laws 1903, page 340 233-238 

Charter, Seattle, article 14, section 8 379 

Charter, Seattle, article 16, section 12 378, 379 



ERRATA 



Page 115, line 5, syllabus: For injuries, read injurious 
Page 185, lines 1-2, syllabus : For Supreme, read Superior 
Page 205, line 5 from top : For Ln, read In 



NOTED IN PREVIOUS VOLUMES 

Volume 38 

Page 241, lines 5-6 from bottom: For Spokane county. Belt, J., 
entered May 16, 1904, read Lincoln county, Neal, J., entered May 3, 
1904 



DETERMINED IN THE 

SUPREME COURT 

OF 



(No. 5363. Decided May 3. 1906.) 

William McCobd, Appellant, v. John Rosene, Respondent} 

Domicile — ^At Hotex — ^Residence of Family in Another State. 
A man may estabUsh his domicile by actual residence at a hotel* 
coupled with an Intention to remain. Irrespective of the residence 
of his family, left In another state for the purpose of educating 
his children. 

Appeal from a judgment of the superior court for King 
county, GriflBn, J., entered September 15, 1903, upon the 
verdict of a jury rendered in favor of the defendant, in an 
action upon a foreign judgment. Affirmed. 

Zf. H. Wheeler, for appellant. 
John P. Hartman, for respondent 

Per Cubiam. — This is an action upon a judgment, ren- 
dered in the Yukon territorial court, in the Dominion of 
Canada, on June 22, 1899, in favor of appellant and against 
the respondent, for the sum of $1,553. It is conceded 
that the action cannot be maintained unless it was com- 
menced within two years from the date of the judgment 
sued upon. The complaint alleges that, during certain short 
pei'iods of time, the defendant was absent from the state 
of Washington, by reason of which absence the length of 
time for the commencement of the action had been extended, 

IReported in 80 Pac. 793. 



2 McCORD V. ROSBNB. 

Opinion Per Curiam. [39 Wash. 

and that the statute of limitations had not run. The answer 
alleged a continuous residence in the state. This question 
was submitted to the jury under proper instructions, and 
they foimd the issues in favor of the defendant. In this 
instance the defendant's family did not reside in this state, 
he having left them in the state of Illinois for the purpose 
of educating the children. 

These matters were all submitted to the jury, and it is 
well established, as a matter of law, that a man's residence 
is not necessarily controlled by the residence of his family. 
Cochrane v. Boston, 4 Allen 177 ; Pennsylvania v. Ravenel, 
21 How. 103, 16 L. Ed. 33; Schlawig v. De Peyster, 83 
Iowa 323, 49 K W. 843, 32 Am. St 308, 13 L. R. A. 785 ; 
Thompson v. State, 28 Ala. 12 ; Exchange Bank v. Cooper, 
40 Mo. 169; Pearce v. State, 1 Sneed (Tenn.) 63, 60 Am. 
Dec. 135. It is also well established that a man's domicile 
is determined by his actual residence, coupled with his in- 
tention to remain, irrespective of the residence of his family. 
Russell's Heirs v, Randolph, 11 Tex. 460. Our own statute, 
Bal. Code, § 1322, provides that absence from the state an 
business shall not affect the residence of any person, pro- 
vided the right to vote has not been claimed or exercised 
elsewhere. 

The only fact which discriminates this case from the great 
number of cases deciding this point is that the residence of 
this respondent was at a hotel, viz., the Butler hotel, in 
the city of Seattle. But tliis fact, we think, cannot make 
any difference with the question of residence. In modem 
times many men establish and maintain their residences in 
hotels, for great periods of years, both with and without 
their families, and whether a man lives in a hotel or at a 
private dwelling, either owned by him or rented for the 
purpose of residence, can make no possible difference. 

We think no error was committed by the court in its in- 
structions on this question, and that the jury was warranted 
from the testimony in determining that the residence of 



BRINGHAM v. AMERICAN BRIDGE CO. g 

May 1905] Opinion Per Mount, C. J. 

the respondent was in the state of Washington. The other 
alleged errors are immaterial, and the judgmenjt will there- 
fore be affirmed. 



(No. 5367. Decided May 3. 1905.) 

Thomas A. Brinoiiam et al.. Appellants, y. American 
Bridge Company of New York, Respondent} 

Contracts — LEnrEBS — Acceptance of Proposals — Time of De- 
livery Not Agreed Upon. Where a proposition by letter to furnish 
certain materials for a building did not specify the time for de- 
livery, and the letter accepting the proposal fixed the time within 
which delivery must be made, whereupon a reply was mailed not 
accepting the time of delivery but stating that the other party 
would be advised of the time in which delivery could be made, and 
six days later the advice was given that the material could not 
be furnished within the time flxed« no contract was entered into. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered January 26, 1904, upon findings 
in favor of the defendant, after a trial before the court 
without a jury, dismissing an action on contract. Affirmed. 

Benson & Hall, for appellants. 

Root, Palmer & Brown, for respondent. 

Mount, C, J. — ^Appellants brought this action in the court 
below to recover damages for an alleged breach of contract. 
The cause was tried to the court without a jury. Findings 
were made and a decree entered in favor of the defendant, 
from which decree plaintiffs prosecute this appeal. 

The sole question in tlie case is whether or not a contract 
was made between the parties^ The alleged contract was in 
the form of letters^ as follows: 

« 

"Messrs. Bringham & Hoska, March 23, 1903. 

"General Contractors, Seattle, Wash. 
"Gentlemen : Referring to recent conversation relating to 
prices for work at Vancouver, we beg to make you the fol- 

iReported in 80 Pac. 788. 



4 BRINGHAM v. AMERICAN BRIDGE CO. 

Opinion Per Mount, C. J. [39 Wash. 

lowing revised pricee, and hereby offer to furnish all ma- 
terial hereinafter mentioned and contained in building No. 
152-e; 75 H, and 75 K for the sum of seven thousand 
five hundred and ninety-seven dollars ($7,597) delivered 
f. o. b. cars or on wharf, at Vancouver, Wash., in accordance 
with the plans and specifications furnished by the U. S. 
Government for the above named buildings. [Then follows 
a list of the materials.] Payments may be made as follows: 
eighty per cent upon the delivery of the material at Van- 
couver, and the balance within thirty days from the receipt 
of material, said payments to be made in proportion to 
the amount of material delivered. 

"American Bridge Company of New York, 

"By H. W. Jack, Contracting Manager." 

"March 23, 1903. 
"American Bridge Company of New York, 
"Seattle, Wash. 
"Gentlemen: We hereby accept your proposition of this 
date for the furnishing of all metal work mentioned in your 
bid for the sum of seven thousand five hundred and ninety- 
seven dollars ($7,597), delivered f. o. b. cars Vancouver, 
Wash. Basement columns to be delivered within sixty days 
from the receipt of the drawings and the balance of the 
columns within ninety days, the rest of the iron work shall 
be furnished in such time as it may be required in the 
building. Yours very truly, 

"Bringham & Hoska, 

"By A. T. Brin^am." 

"Messrs. Bringham & Hoska, March 25, 1903. 

"Vancouver, Wash. 
"Grentlemen : Referring to your acceptance of the 23d 
inst., and in particular to the delivery of the goods mentioned 
therein, beg to state that we have reported that in case there 
should be any question about us not being able to make the 
delivery required by you, to advise you at oncje of such time 
as we may be able to fill your order, and thus give you an 
opportunity to purchase the material elsewhere, in case you 
could not wait for such delivery as we may be able to give 
you ; we trust, however, that there will be no such condition 
existing as would warrant such action. We have also for- 



BRINGHAM v. AMERICAN BRIDGE CO. 5 

May 1905] Opinion Per Mount, C. J. 

warded a copy of this letter to your Seattle address. Youra 
very truly, 

"American Bridge Company of Kew York, 

"By H. W. Jack, Contracting Manager." 

"Seattle, Wash., March 31, 1903. 
"To Brin^am & Hoska, General Contractors^ 
"Vancouver, Wash. 
"Company telegraphed that on account of previous con- 
tracts they could not fill your order as required. 

"American Bridge Company of New York." 

"Seattle, Wash., March 31, 1903. 
"Messrs. Bringham & Hoska, General Contractors, 
"Vancouver, Wash. 

"Gentlemen : We have this morning received a telegram 
from our Chicago office advising us that on account of 
previous contracts we would be unable to execute your order 
in accordance with the requirements mentioned in your ac- 
ceptance, and immediately wired you as follows : 'Company 
telegraphed that on account of previous contracts they could 
not fill your order as required.' We very much regret to 
be obliged to give up this order, but when we informed you 
that we thought the work could be turned out in the time 
mentioned, we were acting in good faith, and presumed that 
some one of our works would be able to handle the worK 
in that time. 

* We trust that vou may be able to place the order where you 
may be assured of the delivery that you require, and hope 
that you will appreciate the effort made by us to make abso- 
lutely sure of the delivery of your material and by ascer- 
taining the facts place you in position to order elsewhere. 
It may be possible that you will have to pay a little more 
than our bid, but in this case the prompt delivery is of more 
importance to you. Yours very truly, 

"American Bridge Company of New York, 

"By H. W. Jack, Contracting Manager." 

It will be noticed that the first letter was an offer to fur^ 
nish materials at a stated price. No time for the delivery 
of these materials was specified. The second letter was a 
letter from appellants, accepting the offer at the price stated, 
but fixing a time certain for the delivery of the materials. 



Q ZBIMANTZ v. BLAKE. 

Syllabus. [39 Wash. 

The third letter did not accept the provisions fixing the time 
of delivery, but informed appellants that they would be 
advised at once of the time in which the respondent would 
be able to fill the order. Six days later, by telegram and 
by letter, the appellants were informed that respondent could 
not fill the order as required. These letters, themselves show 
clearly that no contract was entered into between the parties. 
They fail to agree upon the time within which the materials 
were to be delivered, and the negotiations then ended. The 
parties, therefore, did not agree^ and there was no binding 
contract. 

The judgment appealed from is therefore affirmed. 

FuLLERTOX, Hadley, and Dunbab, JJ., concur. 

RuDKiN, EooT, and Ceow, JJ., took no part. 



(No. 6369. Decided May 3. 1906.) 

Cheistophee Zeimantz et aL, Respondents, v. J. W. Blake^ 

Appellant} 

Pleading — Demurrer — ^Waiver by Answer. A demurrer to a com- 
plaint upon a specified ground cannot be made oraHy at the trial 
after the filing of an answer basing the defense on other grounds. 

Parties — Minors Interested in Community Property — How 
Brought In. Upon objection being made that minors, interested in 
the community estate of their deceased father, are necessary parties 
plaintiff, it is proper to appoint their mother guardian ad litem, 
and to join them as parties plaintifC by the filing of an amended 
complaint. 

Vendor and Purchaser — Time of Essence of Contract — ^Forfei- 
ture — Tender Prior to Notice. A contract for the purchase of land, 
in which time is of the essence, is not forfeited in equity upon 
default in payment of an installment of the purchase price, where 
tender is made before affirmative action on the part of the vendor 
in declaring a forfeiture, nor where the vendor extends the time 
for payment. 

iReported in 80 Pac. 822. 



ZEIMANTZ V. BLAKE. 7 

May 1905] Opinion Per Curiam. 

Same — Tendeb — Amount of — Estoppel to Qttestion — Specitio 
Performance — ^Defenses. Where the vendee tendered the amount 
which he claimed to be due on the purchase price of land, and 
the vendor refused the tender and defended an action for specific 
performance on the ground that there was no liability whatsoever 
under the contract, he is estopped to object that the tender was 
Insufiicient in amount. 

Husband and Wife — CoMMUNrrr Property — ^Husband's Convey- 
ance IN Fraud of Creditors — ^Wife Not Bound By. A release by 
a husband of interests in community property, made in fraud of 
creditors, cannot be held valid as between the parties where it was 
not made known to the wife. 

Appeal from a judgment of the superior court for Lincoln 
county, Neal, J., entered May 3, 1904, upon findings in 
favor of the plaintiffs, after a trial on the merits before the 
court without a jury, decreeing the specific performance of 
a contract to convey land. Affirmed. 

Myers & Warren, for appellant. 
Martin & Grant, for respondents. 

Per Cijbiam. — This is an action to enforce the specific 
performance of a contract to convey land. The following 
are, in substance, the facts found by the court: On March 
11, 1902, the appellant, Blake, and one C. S. Thennes en- 
tered into a written agreement, by the terms of which the 
appellant agreed to sell and convey to Thennes certain real 
property, in the town of liforth Govan, Lincoln county, Wash- 
ington, for the consideration of $1,000, payable as follows: 
$200 on the execution of the contract^ and $200 every six 
months thereafter until the balance of $800 should be paid, 
with interest on deferred payments at 10 per cent per annum. 
The $200 agreed to be paid on the execution of the contract 
was in fact paid, and the balance was evidenced by promis- 
sory notes of $200 each, payable at the respective times 
mentioned in the contract. At the time of the execution 
of the contract, Thennes was a married man, having a 
wife and six children; and, together with his wife and 



8 ZEIMANTZ V. BLAKE. 

Opinion Per Curiam. [39 Wash. 

children, entered into possession of tbe property; and, be- 
tween that time and the time of his death, which occurred 
on April 3, 1902, put permanent improvementa on the prop- 
erty, consisting of a house, bam, and additions to build- 
ings already thereon, of the value of $1,000. Thereafter, 
at the request of the appellant, Thennes and wife paid 
out to the appellant's use $150 for labor, which sum they 
were entitled to have credited as a payment on the con- 
tract of purchase. On March 2, 1903, Thennes tendered 
to the appellant the balance due on the contract and de- 
manded a deed to the premises, but said tender and the 
request for a deed were refused. 

It was further found that C. S. Thennes had, on Sep- 
tember 16, 1902, signed a written agreement purporting 
to surrender to the appellant all his 'interests in the con- 
tract, but it was found that this was not signed or agi'€e<i 
to by the wife of Thennes, and was not intended as a 
surrender of Thennes' interests in the property, by either 
of the parties, but was for the purpose of protecting Thennes 
from certain of his creditors who had begun actions against 
him, in which actions the property was likely to become 
involved. 

It was found further than Thennes died on April 3, 1902 ; 
that the respondent Zeimantz is his administrator, and that 
the respondent Amelia Thennes is the widow of C. S. 
Thennes, and the guardian ad litem of the minor respondents. 
It also appeared that the respondent Amelia Thennes, xxy- 
gether with the minor respondents, had been, at all times 
since the death of C. S. Thennes, in possession of the prop- 
erty; that they had tendered to appellant the balance they 
thought to be due on the contract, and paid the money 
into court on the commencement of this action; that the 
tender was refused by the appellant, not on the ground that 
sufficient was not tendered, but on the ground that he was 
no longer obligated to perform the contract. The amount 
so paid was less than the court finally found to be due, 



ZBIMANTZ V. BLAKE. 9 

May 1905] Opinion Per Curiam. 

and the respondeints were directed to pay into court the 
diflFerenoe between the amount tendered and the amount 
found to be due. On this being done, a decree was rendered 
directing the appellant to convey the property to the admin- 
istrator of the estate. 

The appellant assigns that the court erred in refusing to 
sustain his demurrer to the complaint. This is based on 
the contention that all of the payments provided for by 
the contract sued upon were not due at the time this action 
was brought, and for that reason the appellant could not 
be compelled to accept payment at that time of the full 
amount of the debt. The demurrer, however, was oral, and 
was interposed at the time of the trial, and, so far as the 
record shows, did not mention this as one of the objections 
to the complaint. Furthermore, the appellant had already 
filed an answer in which he based his defense on the ground 
that he was not obligated to perform the contract at all, 
without mentioning this objection. This was a waiver of 
the objection, even conceding it sound. The appellant must 
make his objections to pleadings known in the trial court 
before he can have them reviewed here. 

The appellant complains of the .manner in which the 
minor plaintiflFs were brought into the case. Originally 
the action was begun by the administrator and Mrs. Thennes 
as plaintiffs, but on objection being made, the court re- 
quired that the minors be made parties to the action. Be- 
ing minors, and having no guardian, the court appointed 
Mrs. Thennes guardian ad litem for them, whereupon they 
joined in the suit by their guardian as parties plaintiff, 
an amended complaint being filed. The sufficiency of these 
proceedings is questioned, but the petition for the appoint- 
ment, and the order making the appointment, seem to be 
in accord with the statute, and we hold them sufficient. 

Under the general objection to the sufficiency of the evi- 
dence, the appellant discusses a number of questions. It 
is said that, in order to make a case^ the respondents must 



10 ZBIMANTZ V. BLAKE. 

Opinion Per Curiam. [39 Wasb. 

prove that all of the payments due Tinder the contract up 
to the time of the final tender were paid or tendered at 
the time they fell due, as time was made of the essence of 
the contract, and a forfeiture occurred aa of course on de- 
fault of any payment. We cannot so construe the contract. 
Tliis clause in the contract did not> of itself, forfeit the 
contract in equity simply because a payment was not made 
immediately on its falling due. Undoubtedly the party 
agreeing to make the sale could declare a forfeiture, and 
cut off the ri^t of the other party to make the payments^ 
but it required some affirmative action on his part If he 
remained passive until the other party made tender of pay- 
ment, he was obligated to accept it and to perform his part 
of the contract. However, in this case there was evidence, 
and the court found, that the appellant had expressly extended 
the time of payment. As the finding is supported by the 
evidence, the answer to the objection can rest on this ground. 

It is complained in this connection that the tenders were 
insufficient, but we think the appellant is estopped to com- 
plain of this. Had he refused to perform the contract be- 
cause he had not been tendered payment in full, and ap- 
peared in the action and defended on that ground, he prob- 
ably oauld have succeeded in defeating a recovery of costs 
against him, if his contention should have proven true^ 
though not the performance of the contract. But the ap- 
pellant did not object to the tender when made on the 
ground that enough was not tendered him, nor did he de- 
fend this action on that ground. He denied any liability 
whatsoever under the contract, and it is on that ground 
that he must succeed now, if he succeeds at all. 

It is said, also, that the purported release of the contract 
by C. S. Thennes is obligatory on the respondents, even 
though fraudulently made, on the principle that a transfer 
of property made to defraud creditors is valid as between 
the parties, and, being valid as between the parties, is valid 
as to the heirs and devisees. But this rule cannot apply 



STATE EX REL. KRUTZ v. WASHINGTON IRR. CO. H 
May 1905] Opinion Per Hadlet, J. 

here, even conceding that it would in any such case, as 
this assignment, if made in good faith, would not have had 
the eflFect of canceling the contract. The interest acquired 
by Thennes and wife in the property by the contract was 
community property, and some aflSrmative action on the 
wife's part, in connection with the release, was required 
to make it valid. In this release Mrs. Thennes took no 
part; in fact, it is not shown that she even knew of it 
until after her husband's death. 

On the whole we think the evidence supports the findings, 
and that the findings support the judgment. The judgment 
will therefore stand affirmed. 



(No. 6634. Decided May 3, 1906.) 

Ti£E State of WASHiNotON, on the Relation of Carrie A, 
Krutz, Appellant, v. Washington Ikrigation 

Company, Respondent} 

AFFEAii — Dismissal — ^Retubn of Recobd fob Correction — ^Mistake 
IN Date of Service of Notice. On motion to dismiss an appeal be- 
cause it appears that the bond on appeal was not filed within five 
days after the apparent date of service of the notice, the appellant 
is entitled to have the record returned to the lower court for the 
purpose of correcting a mistake in the record as to the date of 
service, where the record was sent up prior to the motion and with- 
out any opportunity to the appellant to correct it below. 

Motion to dismiss an appeal from a judgment of the su- 
perior court for Yakima county, Rudkin, J. Denied con- 
ditionally. 

IF. U. Bogle and H. J. Snively, for appellant 

E. F. Blaine and Ira P. Englehart, for respondent. 

ILldley, J. — ^Respondent has moved to dismiss the appeal 
in this cause, on the alleged ground that no appeal bond 

iReported in 80 Pac. 803. 



12 STATE EX REL. KRUTZ v. WASHINGTON IRR. CO. 

Opinion Per Hadlet, J. [39 Wash. 

was filed within the time required by law. The record 
sent here is to the effect that the notice of appeal was served 
February 3, 1905, and that the appeal bond was filed on 
the 11th day of the. same month. Upon the face of the 
record it is therefore apparent that the bond was not filed 
within five days after the service of the notice of appeal. 
If the record speaks the truth, the motion to dismiss should 
be granted, under repeated decisions of this court. In re- 
sponse to the motion, the appellant has filed affidavits to 
the effect that the notice of appeal was in fact served on 
the 7th day of February, and not on the 3d of that month. 
The affidavits state that it was first intended to make the 
service on the 3d, and that an acceptance of service was 
written upon the notice as of that date; but that, when 
the service was in fact made, four days later, the date 
theretofore written was by inadvertence overlooked and not 
changed. 

Respondent insists that this court cannot consider the 
affidavits, and in support of its contention citee Ward v. 
Springfield Fire etc. Ins. Co., 12 Wash. 631, 42 Pac. 119. 
The court there discussed the general principle of appellate 
procedure that the authenticated record imports verity, and 
cannot be aided by extrinsic evidence. But the opinion 
quotes approvingly from Boyd v. Burrel, 60 Cal. 280, to 
the effect that^ if the record is incorrect, the fact must be 
made to appear by proper evidence to the court below, whidi 
tribunal has the power to correct so as to make the record 
speak the truth. After stating that the above is the settled 
doctrine of the courts, this court referred to the facts in the 
case then before it. The respondent's brief, which contained 
the motion to dismiss the appeal, was served several days 
before the transcript was forwarded to this court, and the 
appellant not only knew that the respondent intended to 
ask for a dismissal, but he had opportunity to apply to 
the lower court to correct the record. In the case at bar, 
however, notice of the motion before us was served April 



STATE EX REL. KRUTZ V. WASHINGTON IRR. CO. 13 
May 1905] Opinion Per Hadlet, J. 

17, and the transcript was. filed in this court April 15. It 
is therefore apparent that the record had left the court be- 
low when the motion to dismiss was served. At the time 
of the hearing here upon the motion to dismiss, appellant 
orally requested that the record be returned to the lower 
court in order that she may submit her evidence upon the 
subject of correction. The request was timely and, we think, 
should be granted. We do not undertake to consider or 
pass upon the evidence contained in the affidavits submitted 
here. We simply grant what we regard as a reasonable and 
timely request to have the record returned, so that it may 
be made to speak what is alleged to be the truth. The 
determination of the facts must be made by the trial court. 
It is therefore ordered that the record shall be forthwith 
returned to the trial court for the purpose named. And it 
shall also be returned to this court within twenty days from 
the date of filing this opinion. If, in the meantime, the 
trial court shall correct the record so as to show that the 
appeal bond was filed within five days after the service of 
the notice of appeal, then the motion to dismiss shall be 
deemed to be hereby denied, and the appeal shall be heard 
in its course. Upon the other hand, if, upon the return of 
the record here, it shall remain as it now is in the par-, 
ticular mentioned, the motion to dismiss shall be deemed 
to be hereby granted, and an order shall be entered to that 
eflFect, without further hearing. 

Mount, C. J., Fullerton, Rudkin, and Root, JJ., 
concur. 



14 WHITE V. CODD. 

Opinion Per Curiam. [39 Wash. 



(No. 6240. Decided May 4, 1906.) 

Mary F. White, Respondent, v. Wili-iam Codd, Appellant 

Waters — Injunction — Obstruction of Stream by Logging Opera- 
tions — Overflowing Lands — ^Temporary Injunction — ^Admission of 
Acts. A temporary injunction pending the action is properly granted 
to restrain a logger from storing logs in a river or slough in such 
a manner as to overflow its banks, wash away the soil, and prevent 
the cultivation of plaintiff's land, where the defendant's affidavit on 
the hearing admits the commission of such acts and the plaintiff's 
title to the land. 

Same — Prescriptive Rights — Obstruction of Stream fob Six 
Years. No prescriptive rights are acquired by the obstructipn of a 
navigable river and the flooding of lands by the storage of logs 
therein for a period of six years. 

Same — Mandatory Injunction — Removal ov Logs, when Re- 
quired. A mandatory injunction pending the action may be granted 
requiring the removal of logs from the plaintiff's premises, where 
it clearly appears that the defendant, without any conceivable right, 
has obstructed a stream and floated logs upon the plaintiff's lands, 
and left them there, preventing cultivation of the land. 

Appeal from an order of the superior court for Wliitman 
county, C. F. Miller, J., entered March 19, 1904, after a 
hearing upon affidavits, granting a temporaiy injunction, in 
an action to restrain the obstruction of a stream. Affirmed. 

John Pattison, for appellant. 
J. T, Brown, for respondent. 

Per Curiam. — The plaintiff is the owner of one hundred 
and sixty acres of farming land, in Whitman county, through 
whidi flows the North Palouse river. Said river is navigable 
and a public highway for the purpose of driving and floating 
logs and timber products. The defendant^ for about twenty-, 
six years last past, has been engaged in conducting logging 
operations on said river. The complaint charges that, 

"For six years last past, to wit: for the years 1898, 1899 
1900, 1901, 1902, and 1903, the said defendant was and 

1 Reported in 80 Pac. 836. 



WHITE V. CODD. 15 

Afay 1905] Opinion Per Curiam. 

now is engaged in the logging business above said land, upon 
land lying on and near said river, and during each and every 
of said years, the said defendant has cut and placed in said 
river, at a place above said land, large quantities of said 
logs, which he has driven and floated down said river to 
a place just below said land, and there allowed said Ic^ to 
accumulate and remain, and from thence- extending to and 
across said land in the bed and channel of said river, kept, 
retained, and stored said logs for a large portion of each 
and every of said years, thereby making a reservoir of said 
bed, channel and sloughs of said river, extending across said 
land, for storing, retaining and holding his said logs and 
thereby forming a jam and complete obstruction of said 
river on said land, and retarding and obstructing the natural 
flow of the waters of said river over and across said land, and 
causing the waters in said river to back up and raise to 
such an extent as to overflow and flood said land, and obstruct 
and interfere with the cultivation thereof for a large por- 
tion of each and every of said years, and thereby causing 
laarge quantities of said logs to float out of the bed and 
channel of said river, and over and upon said land, and 
allowed the same to remain thereon for a large part of each 
and every of said years, and thereby causing said logs so 
kept in said river to wash and wear away the soil of said 
land and the banks of said river on said land," etc. 

The prayer of the complaint is for a temporary restrain- 
ing order pending the action, and for a mandatory injunc^ 
tion requiring the defendant to remove certain logs from 
the plaintiffs lands. After notice, and upon a hearing had, 
the court made an order, the material parts of which are 
as follows : 

" . . . then until the further order of the court in 
the premises, you, the said William Codd, defendant above 
named, and all your agents, attorneys^ servants and em- 
ployees, and all others acting in aid or assistance of you 
' ajid each and every of you, do absolutely desist, and refrain 
during the pendency of this action, and until the further 
order of this court, from in any manner using the bed, 
channel or sloughs of the Xorth Palouse river, which ex- 
tends over and across the north half of the northwest quar- 



\Q WHITE V. CODD. 

Opinion Per Curiam. [39 Wash. 

ter of section twelve, and the south half of the southwest 
quarter of section one, all in township eixteen, north of 
range forty-three, E., W. M-, in Whitman county, state of 
Washington, as a reservoir or place of storing, holding, re- 
taining or accumulating saw logs, or from in any manner 
using any part of the above described premises as a reservoir 
or place of holding, storing, retaining or accumulating saw 
logs, or from in any manner holding, storing or accumula- 
ting saw logs in said river below the above described premises, 
in such a manner as to back or raise the water in said river 
so as to wash away or overflow the above described lands 
or any part thereof. And you, the said William Codd, 
defendant above named, are hereby further ordered to forth- 
with remove from the above described lands and from the 
bed, channel and sloughs of the North Palouse river ex- 
tending over and across said above described lands, any and 
all saw logs now lying or being thereon or therein." 

Two aflSdavits of the appellant were filed upon the hear- 
ing for the temporary order, and one of the respondent. The 
respondent's title to the land in question is admitted, as is 
also the commission by the appellant of many of the acta 
complained of. The rights of the appellant in the stream 
in question, as a part of the navigable waters of the state, 
are clearly defined by this court in Watkinson v. McCoy, 
23 Wash. 372, 63 Pac. 245 ; Ingram v. Wishkah Boom Co., 
35 Wash. 191, 77 Paa 34; Monroe Mill Co. v. Menzel, 
35 Wash. 487, 77 Pac- 813 ; and Matthews v. Belfast Mfg. 
Co., 35 Wash. 662, 77 Pac. 1046. Under these authorities, 
there can be no question but that the appellant has, through 
a long series of years, trespassed upon the lands of the re- 
spondent and invaded her legal rights. The temporary 
order made by the court accords to the appellant the full 
measure of his rights in the stream in question as a part 
of the navigable waters of the state. The claim of tl^e 
appellant that the respondent has forfeited her right to 
equitable relief, and that he has acquired a prescriptive 
right to flood the respondent's lands, cannot be sustained on 
the showing made, imder the decisions of this court in Rigney 



LEGHORN V. NYDELL. 17 

May 1905] Syllabus. 

V. Tacoma Light etc. Co., 9 Wash. 576, 38 Pac. 147, 26 
L. E. A. 425, and Monroe Mill Co. v. Menzel, supra. 

As to the mandatory feature of the injunction, while the 
court will only grant a mandatory injunction pending the 
hearing on the clearest kind of a showing, yet the appellant 
has no conceivable right to float logs on to the respondent's 
land and leave them there^ under any possible view of the 
case, and the action of the court in requiring their removal 
was therefore proper. Inasmuch as the case is not before 
us on its merits, a further discussion of the questions involved 
would be unprofitable. 

There is no error in th'> record, and the judgment is 
aflirmed. 



(No. 5092. Decided May 4, 1906.) 

Geobge H. Legiiokn, Respondent, v. G. A. Nydell, 
Defendant, and Aetna Indemnity Company, 

Appellant.^ 

INDEMIOTT — GUABANTEEINO BUILDING CONTRACT — ^PLEADING— COM- 
PLAINT — ^Sufficiency — Performance of Conditions Precedent — Lbqai< 
Effect of Contract. In an action upon an indemnity bond guaran- 
teeing the performance of a building contract, a complaint is not 
subject to objection, made for the first time at the trial, for failure 
to plead compliance with conditions precedent, where the bond and 
contract are not set out but are pleaded according to their legal 
effect and no conditions precedent appear. 

Sa&ce — Discharge of Surety — ^Payment of Instaixment Prior to 
Its Maturity. In an action upon an indemnity bond guaranteeing 
a building contract, the surety cannot complain of a payment made 
by the owner to the contractor prior to its falling due, when the 
same was deducted from the last payment due and benefited rather 
than prejudiced the surety. 

Continuance — Denial — Absence of Witness. A continuance to 
secure the attendance of a witness is properly refused where two 

1 Reported in 80 Pac. 833. 

2—39 WASH. 



/ 



]8 LEGHORN V. NYDELOL.. 

Opinion Per Curiam. [39 Wash. 

other continuances had been granted for the purpose, the witness 
could not be found by the sheriff^ and his mental condition was such 
that it was doubtful if he would be competent to testify. * 

Indemnity — ^Release of Surety — Delay of Contbactob — ^ailube 
OF Owner to Take Charge of Building. The owner of premises is 
under no obligation to take charge of and complete a building to 
lessen the demurrage charges on the contractor's default by delay, 
when the contractor was endeavoring in good faith to complete the 
building, and failure so to do does not release a surety on an 
indemnity bond. 

Appeal from a judgment of the superior court for King 
cjounty, Albertson, J., entered December 23, 1903, upon find- 
ings in favor of the plaintiff, after a trial on the merits 
before the court without a jury, in an action upon an in- 
demnity bond. AflSrmed. 

Rootj Palmer & Brown, for appellant. 
Jenner & Williams, for respondent. 

Per Curiam. — On the 12th day of June, 1902, the de- 
fendant Nydell, as contractor, entered into a contract with 
the plaintiff, Leghorn, aa owner, for the construction of a 
building, in the city of Seattle, for the contract price of 
$3,999. The contract provided that the building should be 
completed on or before October 1, 1902, and that the con- 
tractor should pay the owner $3 for each day's delay in the 
completion of the building after said 1st day of October, 
1902, as liquidated damages. On the date of the execu- 
tion of the contract, the defendant Xydell and the defendant 
Aetna Indemnity Company entered into a bond, conditioned 
for the faithful performance of the above mentioned con- 
tract by the defendant Xydell. 

The complaint does not contain a copy of either the build- 
ing contract or the bond, but alleges, generally, the execu- 
tion of the building contract and bond, the failure of the 
defendant Xydell to perform tlie same, and that the plaintiff 
was compelled to, and did, pay $833.56 in excess of, and 
in addition to, the contract price, on vouchers approved by 



LEGHORN V. NYDBLL. 19 

May 1905] Opinion Per Curiam. 

the defendant Nydell, and that such payments were neoes- 
sary to prevent the expense and litigation incident to the 
filing of lien claims against the building and premises ; also, 
that the building was not completed until seventy-six days 
after October 1, 1902. The prayer of the complaint was 
for a judgment in the sum of $1,061.66, against Nydell, and 
for $1,000, the full amount of the bond, against the In- 
demnity Company. The plaintiff had judgment in accord- 
ance with the prayer of his complaint, and the Indemnity 
Company appeals. 

The first objection urged by the appellant is that the court 
erred in admitting testimony under the complaint, because 
it does not state facts sufficient to constitute a cause of action^ 
The particular objection is that the complaint does not allege 
a compliance with the conditions precedent, contained in the 
bond and contract, to be performed by the respondent. The 
difficulty with which the appellant is here confronted is this: 
the complaint pleads the contract and bond according to their 
l^al effect, and no conditions precedent appear therein. The 
complaint was sufficient, in the absence of a deanurrer or a 
motion to make more definite and certain, and the objection 
Was properly overruled. 

The next objection urged is that the respondent paid the 
contractor the sum of $300 at a time when the same was 
not due or payable under the terms of the contract. The 
facts in relation to this payment are these: The payments 
were due in instalbnents under the contract, and were to 
be made on certificates of the architect. The first certificate 
was given July 10, 1902; the second, August 20, 1902; the 
third, September 5, 1902; and the fourth, November 11, 
1902; and the payments were made on or about the same 
dates. On September 15, 1902, the respondent loaned or 
advanced to the contractor the sum of $150, and a like amount 
on September 25, 1902. These amounts were repaid or de- 
ducted from the last certificate of November 11, 1902. 
Whether this was a loan, as claimed by the respondent, or 



20 LEGHORN V. NYDELL. 

Opinion Per Curiam. [39 Wash. 

an advancement under the contract, as claimed by the ap- 
pellant, is wholly immaterial. The money was used by the 
contractor in the construction of the building, and the ap- 
pellant was benefited rather than prejudiced by the irregular 
payments. 

The next objection is that the court erred in denying a 
motion for a continuance in order to enable the appellant to 
obtain the testimony of tlie defendant Nydell. Two con- 
tinuances had already been granted the appellant on account 
of its inability to procure the testimony of this witness. A 
bench warrant had issued for him at the trial, and the sheriff 
was unable to find him. The witness' mental condition ap- 
peared to be such as to raise grave doubts as to the propriety 
of placing him on tlie witness stand, if found. Under such 
circumstances, the court did not abuse its discretion in re- 
fusing the continuance. 

The last objection urged is that the respondent should have 
taken charge of the building and completed it himself, thereby 
lessening the amount of damages claimed for demurrage. 
This contention might be well founded, if the contractor had 
wholly abandoned the contract. But so long as he was en- 
deavoring to fulfill the contract and complete the building in 
good faith, the owner was under no obligation to interfere 
with him. The Indemnity Company reserved the right to 
terminate the contract and take charge of the building for the 
same reasons, but it saw fit to pursue the same course as the 
owner. If the respondent remained subject to all the burdens 
and restrictions which the appellant would impose upon him, 
he might well ask himself why he required an indemnity bond. 

There is no error in the record, and the judgment is 
affirmed. 



WOOD V. EARLS. 21 

May 1905] Opinion Per Curiam. 

(No. 5303. Decided May 4. 1906.) 

George Wood, Appellant, v. Michael Earls ei al.. 

Respondents} 

Ejectment — Defenses — ^Pbima Facie Case — Sufficiency — Non- 
suit — ^Judicial Notice of Facts Not in Evidence. In ejectment, 
where the plaintiff makes out a prima facie case by a complete 
chain of title, the defendants' claim of title through earlier con- 
veyances, adverse possession, or a Judgment of a court of competent 
jurisdiction in another case, must be pleaded and proved, and it is 
error to grant a nonsuit by improperly taking judicial notice of such 
facts not put in evidence. 

Appeal from the judgment of the superior court for Pierce 
county, Huston, J., entered November 25, 1903, dismissing 
an action of ejectment, on granting a motion for a nonsuit at 
the close of plaintiff's case. Reversed. 

/. W. A. Nichols, for appellant 

John M. Boyle, 0. G. Ellis, and A. H. Denman, for re- 
spondents. 

Per Curiam. — This was an action of ejectment. The com- 
plaint is in the usual form, alleging title in the plaintiff, and 
an ouster by the defendants. The answer is a general de- 
nial and a plea of title in the defendants, which is denied 
in the reply. At the trial below a nonsuit was granted, and 
from the judgment of dismissal the plaintiff appeals. 

The appellant offered in evidence a complete chain of title 
from the United States to himself, and there was nothing in 
the appellant's case to defeat or impair the prima facie case 
thus made. If, as claimed by the respondents, the appellant 
has no title, by reason of a conveyance by one of his grantors 
of an earlier date than the one under which the appellant 
claims, or by reason of the final judgment of a court of 
competent jurisdiction which is binding upon the appellant, 
or by reason of adverse possession of the f)remise8 by the 

1 Reported in 80 Pac. 83?. 



22 FILLEY V. CHRISTOPHBR. 

Syllabus. [39 Wash. 

respondents and those under whom they elaim^ it was in- 
cumbent on the respondents to plead and prove such facts. 
It is apparent^ from an examination of the record, that the 
findings and judgment of the court below were not based 
upon the case made by the appellant, but rather upon ex- 
trinsic facts, of which the court improperly took judicial 
notice, such as the former judgment of this court in another 
case, and other matters appearing in the findings, concerning 
which the record is wholly silent. 

The judgment of the court below is therefore reversed, 
with directions to deny the motion for a nonsuit, and pro- 
ceed with the trial. 



(No. 6242. Decided May 4, 1906.) 

Geoboe E. Fillet, as Administrator of the Estate of 

Eliza J. Murphy^ Deceased, Respondent, v. 

A. II. CiiRisTOPHEB, Appellant} 

Fdctubes — ^What Abe — Furnace, Boiler and Pipes. A furnace 
and boiler In a theater building, resting upon solid foundations, 
and which could not be removed wlthoui tearing away masonry, to- 
gether with the pipes and radiators connected therewith, are fixtures 
and pass upon a sale of the realty. 

Same — Opera Chairs, Curtains, and Appliances in Theater. 
Opera chairs In a theater screwed to the floor, drop curtains, scenery, 
and the usual appliances, are fixtures and part of the realty within 
the criterion: (1) actual annexation to the realty or appurtenant 
thereto; (2) application to the purpose to which that part of the 
realty with which it Is connected Is appropriated; and (3) the inten- 
tion of the party. 

Same — ^Evidence or Intention or Party. The surrender of a ticket 
box with the sale of a theater building, by the person who placed 
it therein, may be considered as indicative of his intention, upon the 
question of Its annexation to the realty as a fixture. 

Same — Instructions. Reading judicial decisions to the Jury on 
the complex question of what constitutes a fixture Is not to be 
commended. 

1 Reported in 80 Pac. 834. 



FILLEY V. CHRISTOPHER. 23 

May 1905] Opinion Per Curiam. 

Same — ^Removal — Injuby to Building and Value op Abticlb. 
Instructions to the jury on the subject of what constitutes a fixture 
should not give too much prominence to the Injury to the building 
from removal and the value of the article removed, which are cir- 
cumstances to be considered^ but not controlling. 

Appeal from a judgment of the superior court for Thurs- 
ton county, Linn, J., entered January 30, 1904, upon the 
verdict of a jury rendered in favor of the plaintiff, in an 
action of replevin. Reversed. 

Troy & Falknor, for appellant. 
Israel & Mackay, for respondent. 

Per Curiam. — On the 16tli day of November, 1894, John 
Miller Murphy and Eliza J. Murphy, his wife> mortgaged 
to A. A. Phillips^ trustee, certain real property in the city 
of Olympia, upon a portion of which was situate the Olympia 
theater, for the purpose of securing the payment of certain 
indebtedness due the First National Bank of Olympia and 
others. On the 5th day of January, 1902, this mortgage was 
duly foreclosed, and the mortgaged premises ordered sold 
by a judgment and decree of the superior court of Thursr 
ton county. On the 8th day of March, 1902, the defendant 
in this action became the purchaser of the lots and lands 
upon which the Olympia theater is situate, at sheriff's 
sale, and is still the owner thereof. On the 3d day of No- 
vember, 1895, Eliza J. Murphy died, intestate, and the plain- 
tiff is the administrator of her estate. As such adminis- 
trator, he brings this action in claim and delivery, to recover 
the possession of certain goods and chattels, situate in said 
Olympia theater, claiming the same as personal property 
belonging to the estate of said deceased. The defendant, on 
the other hand, claims that the property in controversy is 
not personal property, but is a part of the realty, and passed 
to him under the foreclosure sale above mentioned. The 
character of thh property is the principal question involved 



24 FILLEY V. CHRISTOPHER. 

Opinion Per Curiam. [39 Wash. 

in the case. The plaintiff had judgment below, and the 
defendant appeals. 

The motion to strike from the transcript^ and the motion 
to dismiss the appeal, are denied. 

So many different articles of property are involved that 
a separate discussion of each would subserve no useful pur- 
pose. At the close of tlie testimony, the appellant requested 
the court to instruct the jury to return a verdict in favor of 
appellant, as to certain articles of property particularly de- 
scribed, and we think a discussion of the questions involved 
in this request will be a sufficient guidance for the lower 
court upon a retrial of the case. The following articles were 
included in this request: 

"One furnace, Denning No. 2, automatic with boiler ; piping 
and plumbing material with radiators ; triangle display board 
on sidewalk; 1 money drawer; 1 ticket box; 146 diairs^ 
(opera). No. 10 (automatic) ; 134 chairs (opera). No. 6 
(Terser back) ; 220 chairs (opera), balcony veneer; 1 drop 
curtain, damask; 1 drop curtain; 12 sets scenery; 1 lot stage 
rigging consisting of 50 sets of lines, chives, and blocks ; set of 
gas light switches and by passes ; gas piping throughout the 
house and fixtures ; water plumbing, electric switch board, and 
140 lights, fixtures .and one dimmer, grooves, chains, belaying 
pins, chives." 

The furnace and boiler in question were located in the 
basement of the theater building, and rested on a foundation 
built up through the floor. They were encased in brick work, 
and could not be taken out or removed without tearing away 
the masonry. The pipes extended from the boiler to the 
radiators, in different parts of the building, for the purpose 
of heating the same. Some of the radiators were not atr 
tached to the building otherwise than to the pipes connected 
therewith. Others were made of piping and hung on brackets. 
The pipes could be detached from the boiler by unscrewing 
them, and could be removed without material injury to the 
building, except to leave the holes through which they passed. 
The triangle display board was built of ship lap, and nailed 



FILLET V. CHRISTOPHER. 25 

May 1905] Opinion Per Curiam. 

to the sidewalk in front of the theater building. It was so 
constructed as to display a bill on either side of it. One of 
the respondent's witnesses testified that it was nailed down 
to keep people from turning it over. The money drawer ran 
in a groove underneath, and next to^ the ticket window. It 
could be removed by simply loosening a screw. The ticket 
box consisted of a box four inches deep, made in two parts, 
which closed together. It contained a diagram of the theater, 
and slits were cut in it to represent each seat and its num- 
ber. It was not attached to the building in any way. The 
five hundred chairs were situate in the body of the theater 
and in the balcony. The chairs were screwed to the floor, 
and were such as are in common use in such places. The 
drop curtains and scenery were attached to the staging, and 
could be removed without material injury to the building. 
The stage rigging was used for the purpose of handling the 
curtains and scenery. The electric switch was used for the 
purpose of lighting the different parts of the house, as neces- 
sity or convenience might require. 

Little could be gained by a review of the authorities as 
to what constitutes a fixture. As said by this court in 
Philadelphia Mtg. & Trust Co. v. Miller, 20 Wash. 607, 56 
Pac. 382, 72 Am. St 138, 44 L. R. A. 559, 'There is a 
wilderness of authority on this question of fixtures, and a 
hopeless conflict of decision." The true criterion of a fixture 
is the united application of these requisites: (1) Actual an- 
nexation to the realty, or something appurtenant thereto; 

(2) application to the use or purpose to which that part of 
the realty with which it is connected is appropriated; and 

(3) the intention of the party making the annexation to 
make a permanent accession to the freehold. Within this 
rule, we are of opinion that all, or nearly all, of the articles 
above referred to are fixtures, and a part of the realty. 

Xearly all the authorities concur in holding that a furnace 
and boiler, t<^ether with the radiators and piping connected 
therewith, such as are above described, constitute a part of 



26 FILLBY V. CHRISTOPHER. 

Opinion Per Curiam. [39 Wash, 

the realty. Thielman v. Carr, 76 111. 385 ; Folsom v. Moore, 
19 Me. 252; Main v. Schwarzwaelder, 4 E. D. Smith (N. 
Y.) 273; Raddin v. Arnold, 116 Mass. 270; Hopewell Mills 
V, Taunton 8av. Bank, 150 Mass. 519, 23 X. E. 327, 15 
Am. St. 235, 6 L. R. A. 249 ; Goodin v. Elleardsville Hall 
Ass% 5 Mo. App. 289; Capehart v. Foster, 61 Minn. 132, 
63 N. W. 257, 52 Am. St 582; Woodham v. First Nat. 
Bank, 48 Minn. 67, 50 K >W. 1015, 31 Am. St. 622. These 
views are not inconsistent with the decision in Philadelphia 
Mtg. & Trust Co, v. Miller, supra. In that case the boiler 
was in no manner attached to the building except by its 
plumbing connections. 

We think the same rule applies to the opera chairs at- 
tached to the floor, the drop curtains, scenery, and appliances 
for raising and lowering the same, and the electric switch 
board. All these articles were attached or annexed to the 
building. They were a permanent accession to the freehold, 
and were no doubt intended as such. In Grosz v. Jackson, 
6 Daly (N. Y.) 463, opera chairs such as are here involved 
were held to be a part of the realty. In Capehart v. Foster, 
supra, it was held that the title to steam radiators, an elec- 
tric enunciator, and an office desk used in a hotel, passed 
bv'E foreclosure sale of the hotel. In Woodham v. First 
Nat. Bank, supra, it was held that the bar and back bar in a 
saloon passed by a foreclosure of the mortgage on the saloon 
building. 

The other items included in the request are not of suffi- 
cient value to warrant an extended discussion. We deem 
it sufficient to say that, in our opinion, the bill board and 
the money drawer were sufficiently annexed to the building 
to become fixtures; and the ticket box, having passed into 
the hands of the purchaser by consent of the former admin- 
istrator, should remain there. It has no value except in 
connection with the theater. While the present administrator 
is not estopped by the act of his predecessor in surrender- 
ing the possession of these articles to the purchaser at the 



FILLBY V. CHRISTOPHER. 27 

May 1905] Opinion Per Curiam. 

• 

foreclosure salei, nevertheless, the forniier administrator was 
the person who placed these articles in the theater building, 
and his act in surrendering possession to the purchaser was 
indicative of his view of their annexation to and connection 
with the building, and is entitled to consideration for that 
reason. On the same ground, the documentary evidence 
offered should have been received. The elimination of the 
above articles from the case disposes of practically all the 
errors assigned. 

The witnesses, whose competency on the question of values 
was challenged, had, in our opinion, sufficient knowledge on 
the subject to be of some aid to the jury. The reading of 
judicial decisions to a jury on the complex question of what 
constitutes a fixture has a tendency to confuse and bewilder, 
rather than to enlighten, and the practice is not to be com- 
mended. It is unnecessary to comment further upon the 
question, as the judgment must be reversed for the reasons 
above stated. The injury that will result to the freehold 
by the removal of an article, and the value of the article 
after removal, are, no doubt, circumstances to be taken into 
consideration in determining whether a given article is a 
fixture or a chattel; but they are not controlling, and too 
much prominence was given these two features in the charge 
of the court. 

This disposes of all the errors assigned. The judgment is 
reversed, with instructions to dismiss the action as to the 
articles enumerated in the request incorporated in this opin- 
ion, and for a new trial as to the remainder of the case, in 
accordance herewith. 



28 STOWH V. LA CONNER TRAD. A TRANSP. CO. 

Syllabus. [39 Wash. 

(No. 6249. Decided May 8. 1905.) 

Ed. L. Stowe, Respondent j v. La Connee Trading & 
Tbansportation Company, Appellant} 

Damages — Special — ^Allegation op — Sufficienct — Personal In- 
juries — Services of Wife as Nurse. In an action for personal in- 
juries, the value of a wife's services as a nurse cannot be recovered 
unless specially pleaded, and evidence thereof is incompetent under 
an allegation of damages for expenses incurred for medicines and 
medical treatment, regardless of any motion to make the complaint 
more definite and certain. 

Damages — ^Measure of — ^Loss of Time — ^Value. In an action for 
personal injuries, it is competent to prove the reasonable compensa- 
tion of a man engaged in ordinary labor in the business engaged in 
by the plaintiff. 

Same — Pain and Suffering — Instructions. In an action for per- 
sonal injuries, an instruction to the effect that there can be no fixed 
measure of compensation for pain and suffering nor for loss of time. 
Is not prejudicial when coupled with correct instructions as to the 
amount to be awarded therefor. 

Damages — ^EKidrnce — Other Accidents — Cross-Examination. In 
an action for personal injuries where the appellant's counsel asked 
a witness if there was any similar injury to another person at the 
same time and place, the appellant cannot complain if the same 
Inquiry was pursued on cross-examination of the witness. 

Same — Ownership of Premises. In an action for personal injuries 
sustained in falling from a dock, cross-examination of a witness as 
to the ownership of the dock is properly excluded when foreign to 
the subject-matter of the testimony in chief. 

Same — Liability of Other Parties — Instructions. In an action 
against the owner of a vessel for personal injuries sustained by a 
passenger in falling from a dock, an instruction to the effect that 
the plaintiff also had a cause of action against the owner of the 
dock, who was not a party to the suit, is properly refused. 

Appeal — Review — New Trial — Conflicting E3vidence. Where 
there is a substantial conflict in the testimony, the verdict and a 
denial of a new trial are conclusive upon the supreme court. 

Witnesses — Credibility — Cross-Examination. Upon cross-exami- 
nation of a witness, it is proper to ask if he is in the employ of the 
party by whom he was called. 

1 Reported in 80 Pac. 856; 81 Pac. 97. 



STOWB V. LA CONNER TRAD, ft TRANSP. CO. 29 

May 1905] Opinion Per Curiam. 

Appeal and Ebbob — Decision — Daixages — Remitting Amount 
Erboneduslt Includb). Where the amount of special damages im- 
properly included in the verdict can be ascertained from the evidence, 
the Judgment may be affirmed upon the condition that the excess 
be remitted. 

Appeal and Ebrob — Costs — Bbiefs Not Filed in Time. Costs will 
not be allowed to appellant for the printing of a reply brief which 
was not filed within ten- days before the hearing, where no extension 
of time was secured and no excuse is offered for the delay. 

Appeal from a judgment of the superior court for King 
county, GriflSn, J., entered February 20, 1904, upon the ver- 
dict of a jury rendered in favor of the plaintiff, in an action 
for personal injuries sustained in falling from a dock. 
AflSrmed upon condition of remitting $100. 

Ira Bronson and D. B. Trefethen, for appellant. 
James A. Snoddy, for respondent 

Peb Curiam. — On the 26th day of October, 1902, the 

• 

defendant^ La Conner Trading & Transportation Company, 
was operating the steamer "Athlon," between the city of Se- 
attle and other points on Puget Sound. On the above date, 
said steamer arrived in port at the city of Seattle about 
7 :30 or 8 :00 o'clock iu the evening, with the plaintiff on 
board as a passenger. As the plaintiff landed from the 
steamer, he stepped into an unguarded railroad slip, in the 
dark, about twenty-five or thirty feet from the end of the 
gang plank, and thereby injured one of his ankles. He 
brings this action to recover damages for the injury so re- 
ceived. The plaintiff had judgment in the court below, and 
the defendant appeals. 

The first error assigned relates to the admission of testi- 
mony as to the value of the wife's services as a nurse while 
attending upon the respondent, and the instruction of the 
court permitting a recovery therefor. The principal objec- 
tion to this testimony is based upon the ground that such 
damages are special, and were not specially pleaded. It is 
not claimed by the respondent that the damages were spe- 



28 STOWB V. LA CONNER TRAD, ft TRANSP. CO. 

Syllabus. [39 Wash. 



(No. B249. Decided May 8. 1906.) 

Ed. L. Stowe, Respondent, v. La Conner Trading & 
Transportation Company, Appellant} 

Damages — Special— Allegation of — Sufficiency — Pebsonal In- 
juries — Services of Wife as Nubse. In an action for personal in- 
juries, the value of a wife's services as a nurse cannot be recovered 
unless specially pleaded, and evidence thereof is incompetent under 
an allegation of damages for expenses incurred for medicines and 
medical treatment, regardless of any motion to make the complaint 
more definite and certain. 

Damages — ^Measure of — ^Loss of Time — ^Value. In an action for 
personal injuries, it is competent to prove the reasonable compensa- 
tion of a man engaged in ordinary labor in the business engaged In 
by the plaintiff. 

Same — Pain and Suffering — Instructions. In an action for per- 
sonal injuries, an instruction to the efCect that there can be no fixed 
measure of compensation for pain and suffering nor for loss of time, 
is not prejudicial when coupled with correct instructions as to the 
amount to be awarded therefor. 

Damages — Evidence — Other Accidents — Cross-examination. In 
an action for personal injuries where the appellant's counsel asked 
a witness if there was any similar injury to another person at the 
same time and place, the appellant cannot complain if the same 
inquiry was pursued on cross-examination of the witness. 

Same — Ownership of Premises. In an action for personal injuries 
sustained in falling from a dock« cross-examination of a witness as 
to the ownership of the dock is properly excluded when foreign to 
the subject-matter of the testimony in chief. 

Same — Liability of Other Parties — Instructions, In an action 
against the owner of a vessel for personal injuries sustained by a 
passenger in falling from a dock, an instruction to the effect that 
the plaintiff also had a cause of action against the owner of the 
dock, who was not a party to the suit, is properly refused. 

Appeal — Review — New Trial — Conflicting Evidence. Where 
there is a substantial conflict in the testimony, the verdict and a 
denial of a new trial are conclusive upon the supreme court. 

Witnesses — Credibility — Cross-Examination. Upon cross-exami- 
nation of a witness, it is proper to ask if he is in the employ of the 
party by whom he was called. 

1 Reported in 80 Pac. 856; 81 Pac. 97. 



STOWE V. LA CONNER TRAD. & TRANSP. CO. 29 

May 1905] Opinion Per Curiam. 

Appeal and Ebbob — Decision — Damages — Remitting Amount 
Ebboneouslt Included. Where the amount of special damages im- 
properly included in the verdict can be ascertained from the evidence, 
the Judgment may be affirmed upon the condition that the excess 
be remitted. 

Appeal and Ebbob — Costs — Bbiefs Not Filed in Time. Costs will 
not be allowed to appellant for the printing of a reply brief which 
was not filed within ten- days before the hearing, where no extension 
of time was secured and no excuse is offered for the delay. 

Appeal from a judgment of the superior court for King 
county, GriflSin, J., entered February 20, 1904, upon the ver- 
dict of a jury rendered in favor of the plaintiff, in an action 
for personal injuries sustained in falling from a dock. 
Affirmed upon condition of remitting $100. 

Ira Bronson and D. B, Trefethen, for appellant. 
James A. Snoddy, for respondent 

Pee Cukiam. — On the 26th day of October, 1902, the 

• 

defendant) La Conner Trading & Transportation Company, 
was operating the steamer '^Athlon," between the city of Se- 
attle and other points on Puget Sound. On the above date, 
said steamer arrived in port at the city of Seattle about 
7:30 or 8:00 o'clock in the evening, with the plaintiff on 
board as a passenger. As the plaintiff landed from the 
steamer, he stepped into an unguarded railroad slip, in the 
dark, about twenty-five or thirty feet from the end of the 
gang plank, and thereby injured one of his ankles. lie 
brings this action to recover damages for the injury so re- 
ceived. The plaintiff had judgment in the court below, and 
the defendant appeals. 

The first error assigned relates to the admission of testi- 
mony as to the value of the wife's services as a nurse while 
attending upon the respondent, and the instruction of the 
court permitting a recovery therefor. The principal objec- 
tion to this testimony is based upon the ground that such 
damages are special, and were not specially pleaded. It is 
not claimed by the respondent that the damages were spe- 



80 STOWB V. LA CONNER TRAD, ft TRANSP. CO. 

Opinion Per Curiam. [39 Wash. 

cially pleaded, unless included within the statement that 
"plaintiff incurred and paid expenses for medicines and medi- 
cal and surgical treatment of his said injuries in the sum 
of $112.50." 

The objection to this testimony, and the exception to the 
instruction complained of, must be sustained. Damages 
which necessarily result from the act complained of are de- 
nominated "general damages," and may be proved under the 
ad damnum clause, or general allegation of damage, while 
those which are the natural consequence of the act complained 
of, but not the necessary result of it, are termed "special 
damages." The defendant must be presumed to be aware 
of the damages which will necessarily result from the act 
done, and therefore he cannot be held to be taken by sur- 
prise when proof is offered of such necessarily resulting dam- 
age. But as to the damage naturally, though not necessarily, 
resulting from the act done, the defendant cannot be pre- 
sumed to be aware of it, and therefore, in order to prevent 
a surprise on the defendant, it must be specially set forth 
in the complaint, or the plaintiff will not be permitted to 
give evidence of it at the triaL We think expenses incurred 
for nursing, doctor bills, etc., do not necessarily result from 
an injury, and therefore constitute special damages, within 
the above rule, and must be specially pleaded. Such is the 
general rule on this subject 5 Ency. Plead. & Prac, 751. 

Xor can we uphold the contention of the respondent that 
the item in question comes within the allegation of the com- 
plaint as to medicines, and medical and surgical treatment; 
first, because it does not come within the allegation as a 
matter of construction; and second, because the court ad- 
mitted the evidence and permitted a recovery under the gen- 
eral ad damnum clause, and did not limit the respondent 
to the $112.50 alleged in his complaint for medicines, medi- 
cal and surgical treatment, and nursing. Nor is there any 
merit in the claim that the appellant should have moved to 
make the complaint more definite and certain. The com- 



STOWB V. LA CONNER TRAD. 6 TRANSP. CO. 31 

May 1905] Opinion Per Curiam. 

plaint was already bath definite and certain as to the claim 
for general damages^ and the appellant had no means of 
knowing that special damages would be claimed. 

The next assignment relates to the admission of testimony 
as to the reasonable compensation of a man engaged in ordi* 
nary labor, in the city of Seattle, at the time of the injury 
complained of. The respondent and the witness to \diom 
this question was propounded were partners in the billiard 
and bar supply business. The witness traveled on the out- 
side, and the respondent attended upon the store or place 
of business. The answer to the question was: "An ordi- 
nary laborer is worth somewhere about three to three dollars 
and a half a day in my business." Inasmuch as other parts 
of the record show that the respondent was engaged in that 
business, we do not think there was any prejudicial error 
in the admission of this testimony, especially in view of 
the fact that the court excluded testimony tending to show 
the correct measure of damages^ at the instance of the ap- 
pellant. 

The next assignment is baaed upon the following extract 
from the charge of the court: 

"You are instructed that there can be no fixed measure 
of compensation for the pain and suffering of body and mind, 
nor for the loss of time and care in business" 

Waving the question, whether this statement of the law is 
technically correct, as applied to damages for "loss of time 
and care in business," this portion of the charge, when 
coupled with the further instruction that, if the jury found 
for the respondent, they should award him such amount 
as would justly, fairly, and fully compensate him for the 
loss of time, if any, etc., could not mislead the jury or 
operate to the prejudice of the appellant. 

The next assignment relates to proof of a similar injury 
to another person at the same time and place. Such testi- 
mony is not ordinarily competent, but the record discloses 
this situation: Counsel for appellant asked one of his wnt- 



32 STOWE V. LA CONNER TRAD, ft TRANSP. CO. 

Opinion Per Curiam. [39 Wash. 

nesses this question: "Was there any other man fell into 
the slip that night?" Answer: "No^ sir, not to my knowl- 
edge." Counsel for respondent, on cross-examination of the 
same witness, pursued the same inquiry with the same re- 
sult. Under these circumstances, the appellant will not be 
heard to complain of the error, if error it was* 

The next assignment relates to the exclusion of evidence 
as to the ownership of the pier where the accident occurred, 
and the refusal of the court to give an instruction on the 
same question. The appellant sought to prove the owner- 
ship of the dock or pier, on the cross-examination of one 
of the respondent's witnessea The court sustained an ob- 
jection on the ground that it was not proper cross-examina- 
tion. The ruling of the court in this regard was clearly 
right, as the question was wholly foreign to the subject-matter 
of the witness' testimony in diief. The instruction refused 
was to the effect that the respondent also had a cause of 
action against the dock owner for the same injury, if he 
had one against the appellant. This request was properly 
refused, as it mattered not who else might be liable to the 
respondent. That question was not before the court. 

The next assignment of error relates to the refusal to 
grant a new trial. There was a substantial conflict in the 
testimony, and the finding of the jury and the action of 
the trial court in denying a motion for a new trial are 
conclusive upon this court in all such cases. 

The last assignment relates to certain questions propounded 
to one of the appellant's witnesses on crossrexamination. 
Counsel for respondent asked this witness, in effect, if he 
was in the employ of the appellant. There was certainly 
no impropriety in this. 

We do not deem it necessary to grant a new trial, abso- 
lutely, on account of the first error discussed in this opinion. 
The testimony of the respondent was to the effect that his 
wife nursed him for about four weeks, and the testimony 
of the otlier witnesses was to the effect that such services 



STOWE V. LA CONNER TRAD. & TRANSP. CO. 33 

May 1905] Opinion Per Curiam. 

were worth from twenty to twenty-five dollars per week. 
The judgment of the court below will be reversed, unless 
the respondent shall file with the clerk of this court a re- 
lease of the sum of $100 from the amount of said judgment, 
within thirty days from the filing of this opinion. But, 
upon the filing of such release, the judgment will be modi- 
fied to that extent^ and, as thus modified, the same will be 
aflirmed. The appellant will recover its costs on this appeal. 

Upon Exceptions to Costs. 
[Decided June 7, 1905.] 

Peb Cubiam. — ^Respondent has filed exceptions to the tax- 
ation of costs on this appeal. The sum* of $18 was taxed 
in favor of appellant on account of its reply brief. Re- 
spondent excepts to said item on the ground that the reply 
brief was neither served nor filed ten days before the hear- 
ing; that there was no extension of time by stipulation 
or otherwise, and no excuse was offered for the delay. Laws 
1901, pp. 30, 31, ch. 31, § 3, contains the following: "Not 
less than ten days prior to the hearing the appellant may 
also serve and file either with the clerk of the superior 
court or in the supreme court like printed brief or briefs, 
strictly in reply to respondent's brief." The same section 
also provides for an extension of the time, either by order 
of the superior court for good cause shown, or by stipula- 
tion of the parties. In the absence^ of such extension, the 
statute requires the reply brief to be filed, "Not less than 
ten days prior to the hearing." Appellant was, therefore, 
not entitled, as a matter of right, to file its reply brief when 
the samje was filed, and for that reason respondent ought not 
to be charged with costs on account thereof. It is there- 
fore ordered that the taxation of costs heretofore made in 
this appeal shall be modified to the extent of eliminating 
said item of $18. 

8—^ WASH. 



ftf^ 260 34 YESLER ESTATE v. HOLMES. 

Opinion Per Curiam. [39 Wash. 



(No. 4854. Decided May 8. 1906.) 

Yesleb Estate, Incorporated, Respondent, v. H. E. 
Holmes, as Executor etc. Appellant} 

Adverse Possession — Disseizin — ^Entbt Undeb Claim of Right. 
Adverse possession, to work a disseizin of the true owner, must be 
under a claim of right or color of title, and it is proper in ejectment 
to instruct a Jury that an entry on the lands of another under a 
mistaken though honest belief that the same are public lands sub- 
ject to entry, would not work a disseizin of the true owner. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered January 10, 1903, upon the 
verdict of a jury rendered in favor of the plaintiff in an 
action of ejectment Affirmed. 

W. D, Lambuth and Richard Winsor, for appellant 
Struve, HiLghes & McMicken, for respondent. 

Per Curiam. — This is an action of ejectment, brought 
by the respondent against Charles F. Kraft and Mary Kraft, 
his wife, to recover the possession of certain lands vrhioh 
the respondent claimed formed a part of the donation land 
claim of Henry L. Yesler, to which it had succeeded by 
virtue of certain mesne conveyances from the heirs and dev- 
isees of his estate. Kraft and wife, answering the com- 
plaint, denied that the respondent had title to the property, 
or that it was ever a part of the donation land claim of 
Henry L. Yesler; and, as an affirmative defense, alleged 
that the land was the property of the state of Washington, 
of which they were rightfully in possession, and that they 
had held possession of the same, openly and notorigusly, 
adverse to all the world, except the state of Washington, 
for a period of more than ten yeara The new matter in 
the answer was put in issue by a reply; and a trial was 
had on the issues thus made, before the court sitting with 

1 Reported in 80 Pac. 851. 



YBSLER ESTATE v. HOLMES. 35 

May 1905] Opinion Per Curiam. 

a jury, which resulted in a verdict and judgment for the 
respondent. From the judgment, Kraft and wife appealed. 
Subsequent to the appeal, both of the appellants died, and 
H. E. Holmes was appointed executor of the one, and ad- 
ministrator of the other. By order of this court^ he was 
substituted in the place of the deceased appellants, and con- 
tinues the prosecution of the appeal in his representative 
capacity. 

A number of errors, are assigned, but as the appellant 
has discussed in his brief only those assigned on the giving 
of certain instructions^ and the refusal to give certain othersj, 
we will notice these only. Counsel have been more than 
brief, both in their argument and in their references, and 
we have had some difficulty in ascertaining just what the 
precise objections to the instructions given are; but, as we 
understand it, they find fault with that part of them in 
which the court undertakes to define to the jury what con- 
stitutes adverse possession. 

On this subject the court, in substance, instructed the jury 
that, under our statute, the rightful owner of real property 
is seized of the same, whether he is in possession of it or 
not, and that disseizin can only occur where there is an 
adverse and hostile entry; that an entry, to constitute an 
adverse or hostile entry, must be under a claim of right, made 
for the purpose of dispossessing the owner ; and that an entry 
on the lands of another, under a mistaken, though honest, 
belief that such lands are public lands and subject to entry, 
would not work a disseizin of the true owner. It is con- 
tended that the court has here laid down a more harsh 
rule than the law warrants, in that mere possession, if suf- 
ficiently open and notorious to apprise the community that 
the land is in the possession of the occupant, will work a 
disseizin of the true owner. But the instructions are in 
accord, it seems to us, with the cases of Balch v, Smithj 
4 Wash. 497, 30 Pac. 648 ; BelUtigham Bay Land Co. v. 
Dibble, 4 Wash. 7G4, 31 Pac. 30; Moore v. Brownfield, 



36 TESLER ESTATE v. HOLMES. 

Opinion Per Curiam. [39 Wash. 

7 Wash. 23, 34 Pac. 199 ; and Blake v. Shriver, 27 Wash. 
593, 68 Pac. 330. In the last cited case, we said: 

"Without especially reviewing all the cases cited by either 
the appellants or respondent, the overwhelming weight of 
authority seems to be that the basis of an adverse possession 
is a claim of title or right. An entry can only be made by 
the seizin of the claimant, or by an ouster of the owner 
of the freehold. There must be a disseizin before another 
can become legally possessed of the lands, and this, of course, 
can only be done by some act which works a disseizin of 
the original owner, for the seizin cannot abide in two claim- 
ants at the same time. And as the statute of limitations 
will not commence to run until this seizin, it becomes nec- 
essary to determine what acts will constitute a disseizin or 
dispossession of the original claimants. First, there must 
be an intention; that is, an entry for the purpose of dis- 
possessing the owner. That intention, of course, must be 
determined by the acts of the usurper ; and before the right 
of the owner could be extinguished, and his divestment 
established, and in investiture created for the usurper, there 
must, of necessity, be an adverse possession on the part of 
the new claimant. And while it is true that the statute pro- 
vides that no action shall be maintained unless the plaintiff 
has been possessed within ten years, yet the question of 
whether or not the original owner is so disseized must of 
necessity, in a case like this, depend upon whether or not 
there has been an adverse possession of the defendants dur- 
ing the statutory period. For the disseizin can only occur 
where there is an adverse or hostile entry. This court has 
said in Bellingham Bay Land Co. v. Dibble, 4 Wash. 764, 
31 Pac. 30, that the entry must be under claim or color of 
title, or it would not ripen into title." 

Under the rule of these cases, a mere naked possession is 
not sufficient to constitute adverse possession under the stat- 
ute. Possession, to be adverse, must be actual, open, notori- 
ous, continuous, and under a claim of right or color of title. 
The instructions complained of did not go beyond this rule. 
Nor was the instruction contrary to Moore v, Brownfield, 
10 Wash. 440, 39 Pac. 113. In that case the owner him- 
self had put the claimant in possession, disclaiming all in- 



ADAMS V. CASEY. 37 

May 1906] Opinion Per Curiam. 

terest in the property, and stating that it belonged to the gov- 
ernment. It was held that this disclaimeir and these repre- 
sentations estopped the owner from asserting the contrary, 
even thoiigh they were made in good faith, and in the belief 
that the land was government land. 

The instructions requested and refused require no special 
consideration. Those that were pertinent and proper were 
substantially given, and this is all that a litigant can re- 
quire. There is no error in the record, and the judgment 
will stand affirmed. 



(No. 5267. Decided May 8, 1906.) 



J. M. Adams, Respondent, v. John T. Casey ei al.. 

Appellants} 

Appeal — ^REvncw — Findings Not Excepted to. In an action at 
law, tried without a Jury, findings to which no exceptions are taken 
must be considered as the facts in the case. 

Pleadino — Answeb — Reply to Denial Not Requibed. In an 
action upon a promissory note an answer which "denies that there 
was any consideration . . . but alleges that the same was given 
for security only/' is no more than a denial requiring no reply. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered February 27, 1904, upon findings 
in favor of the plaintiff after a trial before the court with- 
out a jury, in an action upon a promissory note. Affirmed. 

Casey & Casey and Solon T, Williams, for appellants. 
Byers & Byers, for respondent. 

Per Curiam. — This action was brought upon a promis- 
sory note. The complaint is in the usual form in such 
actions. The answer, omitting the formal parts, is as fol- 
lows: 

"(1) Denies that there was any consideration in the note 
described in paragraph 1 of the complaint, but alleges that 

1 Reported in 80 Pac. 863. 



38 FICKETT V. FICKETT. 

Syllabus. [39 Wash. 

the same was given for security only to the plaintiflF. (2) 
Denies that there is anything due from the defendants to 
plaintiff on said note or otherwise." 

No reply was filed by the plaintiff. When the cause was 
brought on for trial, defendants moved for a judgment on 
the pleadings. This motion was denied. The cause was 
thereupon tried to the court without a jury. The court 
made findings in favor of the plaintiff, and entered a judg- 
ment for the amount alleged in the complaint. Defendants 
appeal. 

Appellants took no exception to the findings of the court. 
These findings must, therefore, be considered as the facts 
in the case. Bice v. StevenSj 9 Wash. 298, 37 Pac. 440; 
McKee v. Whiiworth, 15 Wash. 536, 46 Pac. 1045 ; Wood- 
hurst V. Cramer, 29 Wash. 40, 69 Pac. 501. 

Appellants argue that the court should have granted the 
motion for judgment on the pleadings. The answer of de- 
fendants was no more than a denial of the facts pleaded in 
the complaint, and therefore required no reply. 

The judgment is afiJrmed. 



(No. 5147. Decided May 8, 1906.) 

Bessie Fickett, Respondent, v. Foster Fickett, 

Appellant} 

DivoBCB— Custody of Children — Review — Evidence — Sufficienct. 
In an action for a divorce and the custody of children 10 and 11 
years of age, where the court grants the husband a divorce upon his 
cross-complaint, but awards to the wife the custody of the children, 
together with $30 per month for their support, the findings will not 
be reversed on appeal where the court appears to have decided with 
the weight of the evidence and for the best interests of the children. 

Appeal from a judgment of the superior court for King 
county, Bell, J., entered March 29, 1904, after a trial on 
1 Reported in 80 Pac. 1134. 



FICKETT V. PICKETT. 39 

May 1905] Opinion Per Curiam. 

the merits before the court without a jury, decreeing a 
divorce and awarding the custody of the children. AflSrmed. 

Charles R. Crouch, for api)ellant. 
Weter & Roberts, for respondent. 

Per Curiam. — The respondent sued for divorce, and for 
the care and custody of the minor children of herself and 
husband, said children being a girl of the age of eleven years 
and a boy of the age of ten years. The appellant appeared 
in the action, put in issue the allegations on which the re- 
spondent relied, and filed a cross-complaint in which he 
asked that a divorce be granted him, and that he be awarded 
the care and custody of the children. The court heard the 
evidence of the parties and rendered a decree in which it 
awarded the appellant a divorce on his cross-complaint, but 
awarded the children to the respondent, and directed that 
the appellant pay to her $30 per month for their support. 
This appeal is from that part of the decree awarding the 
respondent the custody of the children and directing that 
the appellant pay $30 per month towards their support. 

The questions presented by the appeal are wholly ques- 
tions of fact, and these have been ably and exhaustively 
presented, both orally and by briefs. But, as we have often 
said, it serves no useful purpose for this court to discuss 
evidence for the mere purpose of determining on which side 
its weight preponderates. Such arguments are rarely, if 
ever, convincing to the losing party, or his counsel, and are 
of no interest to the general profession, because never useful 
as precedents. It is sufficient, therefore, in this case, to 
say that we have examined the record with care, and feel 
that the court decided with the weight of the evidence, and 
for the best interests of all the parties concerned. If it 
should hereafter prove that a change in the custody of the 
children is desirable, or that the order requiring the ap- 
pellant to pay money for the children's support should her 



40 WISER V. THOMAS. 

Opinion Per Cbow, J. [39 Wash. 

oome oppressive, changes therein can be made to meet the 
changed conditions, by applying to the court that granted 
the decree, or the court that attempts to enforce the orders- 
The judgment is affirmed. 



(No. 6458. Decided May 8. 1906.) 

W. II. Wiser, Respondent, v. L. E. Thomas, Appellant} 

Exemptions — Claim by Debtob — List of Pbopebty — Sufficiency. 
Where goods levied upon are claimed as exempt by the debtor, under 
Bal. Code, § 5255, a second list by separate items of the property 
claimed as exempt is not necessary, where the sworn statement de- 
livered to the officer contained a list of all the debtor's property and 
claimed all of it as exempt. 

Same — Value of Property — Complaint — Pleading and Proof. 
Where property levied upon was claimed as exempt by the debtor, 
who admitted at the trial that part of it was not exempt because 
the judgment was for unpaid purchase money thereon, the fact that 
the debtof 8 sworn satement, and also his complaint, alleged the value 
of all the property to be |250, does not confine his proof of the total 
value to such sum, or limit his recovery to the difference between such 
sum and the value of the non-exempt property; but he is entitled 
to show that exempt property of the value of $250 was levied upon 
and taken. 

Appeal from a judgment of the superior court for Kitti- 
tas county, Eudkin, J., entered January 27, 1904, upon find- 
ings in favor of the plaintiff, after a trial before the court 
without a jury, in an action for conversion. Affirmed. 

Kauffman & Frost, for appellant 
John B. Davidson, for respondent. 

Crow, J. — This action was commenced by respondent 
against the appellant, L. R. Thomas, as sheriff of Kittitas 
county, to recover damages growing out of the failure of 
said appellant to deliver to respondent certain goods, levied 
upon by appellant, and demanded by respondent as exempt 

1 Reported in 80 Pac. 854. 



WISER V. THOMAS. 41 

May 1906] Opinion Per Cbow, J. 

from execution. In compliance with Bal. Code^ § 5255^ 
respondent delivered to appellant, as such sheriff, a sworn 
statement, alleging that he was a householder residing in 
Kittitas county, said statement containing an itemized list 
of all personal property owned or claimed by him. In the 
same document it was stated that respondent claimed all of 
the property thereiiL described, as exempt from execution 
and sale, the value of said property being fixed by respondent 
at $250. The judgment creditor having made no demand 
for an appraisement, no appraisement was had, nor was any 
of the property levied upon returned to respondent. In 
his complaint respondent again alleged the value of all ^id 
property to be $250. On the trial, judgment was entered 
in his favor, for the said sum, and this appeal has been 
taken. 

Appellant, in his answer, with other defenses, alleged that 
a portion of the goods levied upon were not exempt from 
execution, for the reason that the judgment under which 
such levy was made had been obtained for the purchase 
price thereof, and alleged the value of the goods not exempt 
to be $200. This portion of the answer was not denied. 

On the trial respondent offered in evidence the sworn 
statement delivered to the sheriff by him. To said offer, 
appellant objected, for the reason that the said statement 
did not comply with the requirements of said § 5255, in 
that respondent had not also delivered to the sheriff a list 
by separate items of the property he claimed as exempt It 
is the contention of appellant that two lists should have been 
presented: First, one containing an itemized statement of 
all personal property owned or claimed by respondent; and 
second, another list containing by separate items all of the 
property which he claimed as exempt. It appears, however, 
that respondent claimed as exempt all of the property owned 
and mentioned by him in his itemized list. We think this 
was a substantial compliance with the statute, and that no 
error. was committed in admitting said sworn statement. 



42 WISER V. THOMAS. 

Opinion Per Cbow, J. [39 Wash. 

Upon the trial respondeoit admitted that the portion of 
the goods referred to in the answer were not exempt, by 
reason of the fact that the judgment under which the levy 
had been made had been obtained for unpaid purchase 
money thereon. While upon the witness stand, respondent 
was asked the value of all of said goods^ including those 
exempt and not exempt ; and, over the objection of appellant, 
was permitted to testify that they were all of the total value 
of $450. The ground of appellant's objection was that, as 
respondent had alleged the value of all goods, exempt and 
non-exempt, to be only $250, the correct method of measuring 
his damages would be to prove the value of the goods not 
exempt, deduct the same from said $250, and allow respond- 
ent judgment for the balance. Other exceptions were taken 
to the admission of evidence, but they all involved the same 
principle contended for by appellant. 

We think no error was committed by the court in admitting 
respondent's evidence. On this point, while it is true re- 
spondent alleged the value of all of the goods to be $250, 
we do not think the proper method of ascertaining the value 
of the portion exempt is that stated by appellant If, in 
tfact, all of the goods were worth $450, as testified by re- 
spondent, and the portion found to be exempt was of the 
value of $250, respondent certainly should have been per- 
mitted to show such actual value of the goods exempt, not 
in excess of the amount alleged in his complaint. The trial 
court, upon the evidence, fixed the value of the goods ascer- 
tained to be exempt at $250, and judgment was entered 
accordingly. 

There being no error in the record, the judgment is 
affirmed. 

Mount, C. J., Dunbar, and Root, JJ., concur. 

FuLLERTON, Hadley, and RuDKiN, JJ., took no part 



ERICKSON V. MURLIN. 43 

May 1905] Opinion Per Fullebton, J. 



(No. 5274. Decided May 8, 1906.) 

H. C. Ekickson, Appellant, v. Ciieistina Murlin et ah, 

Respondents} 

BouNDABiES — ^Adverse Possession — Detebmininq Disputed Bound- 
ABY Line. A boundary line between two city lots may be determined 
by adverse possession for the statutory period, where the party pur- 
chased the lot inclosed by a fence including the twenty-one inches 
in dispute, immediately built a house thereon so close to the line 
that the drip from the eaves fell upon the strip of land in question, 
and resided thereon maintaining the fence in the same place and 
improving the disputed strip in the same manner as the balance of 
the lot, openly, continuously, and under a claim of right. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered March 30, 1904, upon findings 
in favor of the defendants, after a trial before the court with- 
out a jury, dismissing an action of ejectment. Affirmed. 

William Wray, for appellant. 
Winsor & Hadley, for respondents. 

FuLLEETON, J. — In this action the appellant sought to 
recover from the respondents a tract of land, described as 
the north twenty-one inches by one hundred and twenty feet 
of lot nine, in block twenty-six, of Sarah A. Bell's Second 
Addition to the city of Seattle. In his complaint the ap- 
pellant alleged that he was the owner in fee simple of the 
tract described, that the respondents were wrongfully in pos- 
session of the same, and wrongfully and unlawfully withheld 
such possession from the appellant. The respondents answered, 
denying that the tract claimed by the appellant was, or evei 
had been, a part of lot nine, as alleged in the complaint; 
and alleged affirmatively that they and their predecessors 
in interest had been in the open, notorious, and exclusive 
possession of the tract so claimed since April 5, 1889, hold- 
ing the same adversely to all the world. The appellant put 

1 Reported in 80 Pac. 853. 



44 ERICKSON V. MURLIN. 

Opinion Per Fullebton, J. [39 Wash. 

in issue by a reply the affirmative matter of the answer. 
The action was tried by the court without a jury, which 
found with the respondents on all of the issues; finding that 
the respondents were not in possession of any part of lot 
nine, mentioned in the complaint^ and that they, and their 
predecessors in interest, had held the tract claimed by the 
appellant, adversely to all the world for the period of the 
statute of limitations. 

The appellant contends that these findings are against the 
weight of the evidence; that all of the competent evidence 
showed that the fence, thought to mark the dividing line 
between the respective lots of the parties, was twenty-one 
inches from the boundary line on the appellant's lot; and 
that such possession as the respondents and their predeces- 
sors in interest held of it was held up to the year 1900 under 
a mere mistake as to the true boundary line, and has only 
been adverse since that tima 

Whether the true boundary line is as contended for by the 
appellant, or is as found by the court, we shall not inquire, 
as we think the respondents have title by adverse posses- 
sion. The record" shows that the respondent Murlin and her 
then husband, E. P. Edsen, purchased lot eight, in the block 
in question (the lot adjoining the lot now held by the ap- 
pellant), on April 5, 1889; that the lot was then inclosed 
by a fence, and that the fence marked the dividing line be- 
tween lot eight and lot nine at the place where the fence 
now marks it; that they entered into possession of the lot 
immediately after its purchase, and, during the summer of 
that year, erected a house thereon at a cost of two thousand 
dollars; that they moved into the house and resided therein 
together until the respondent succeeded to the interests of 
her husband, since which time the respondent has resided 
therein by herself. It further appeared that the house was 
built so close to the fence marking the dividing line between 
the lot eight and lot nine that the drip of the eaves there- 
from falls upon the twenty-one inches in dispute. It also 



BURNETT V. EWING. 45 

May 1905] Syllabus. 

appeared that, since the entry of the respondent and her hus- 
band, in 1889, the possession of the property by respondents 
has been actual, open, notorious, continuous, and under a 
claim of right; and that this part of the property has been 
improved in the same way that other parts of the lot were 
improved, and the same acts of ownership have been exer- 
cised over it as were exercised over such other part& It 
seems to us that this is inconsistent with any other theory 
than that of adverse possession. And unless it is to be held 
that boundary lines cannot be determined by possesion and 
claim of right upon the one side, and acquiescence upon 
the other, we know of no reason why the respondents may 
not claim title by adverse possession in this instance. The 
general rule, as we understand it, is that boundary lines may 
be determined by adverse possession, and we so held in 
Bowers v. Ledgerwood, 25 Wash. 14, 64 Pac 936. 
The judgment appealed from is affirmed. 

Mount, C. J., TTadley, and Dunbae^ JJ., concur. 

RuDKiN, Root, and Ceow, JJ., took no part. 



(No. 5202. Decided May 8. 1906.) 

Chables H. Buenett, Jr., Respondent, v. Albeet M. 

EwiNG et al.. Appellants} 

Ajpveal — EJxcEpTioNS — Ordeb Embodied in Joubnal Entbt. An 
order refusing leave to file a supplemental complaint is reviewable 
on appeal without any formal exceptions, where it Is embodied in 
a written order and journal entry in the cause. 

Pleading — Supplemental Answeb — Sufficiency — Leave to File. 
The fact that a proposed supplemental answer is not sufficiently full 
and particular to conform to the rules of good pleading is no justifi- 
cation for refusing leave to file it, where it contained the substance 
of a good defense. 

1 Reported in 80 Pac. 855. 



46 BURNETT V. EWiNG. 

Citations of Ck)unBel. [39 Wash. 

Tenancy in Common — ^Mechanics' Liens — ^Pubchase of Outstand- 
ing Liens — Pleading — Real Pabty in Intebest — Supflemlntal 
Answer Showing Plaintiff to Be Trustee of Cotenant — Suffi- 
ciency. Where the leasehold interests of tenants in common were 
being subjected to a mechanics' lien foreclosure, and one B purchased 
the interests of the plaintiff and was substituted as party plaintiff 
in the foreclosure suit, a supplemental answer by two of the de- 
fendants states a good defense to the action, where it alleges that 
B was not the real party in interest, but was the agent and trustee 
of their codefendant, who had purchased the liens of the plaintiff; 
since the codefendant as a tenant in common cannot buy up an out- 
standing incumbrance and foreclose against his cotenants without 
showing an exclusive liability for the whole thereof; and it is error 
to refuse leave to file such an answer. 

Mechanics' Liens — Fobeclosube — ^Defenses — Pleading — Supplb- 
mental Answer Showing Payments — Stipulation for Credits Prior 
to Entry of Judgment — Waiver. In an action to foreclose me- 
chanics' liens, where the parties agreed In writing that Judgment 
be postponed and that payments made should be credited on the 
liens before the entry of judgment, it is error, on plaintiff's motion 
for judgment, to refuse the defendants leave to file a supplemental 
answer showing payments made since the commencement of the 
action which had not been credited; and the original answer ad- 
mitting the amount due on the liens did not waive the enforcement 
of the contract. 

Same — Crediting Note Assigned as Collateral. In such a case, 
the defendants are not entitled to have a note, assigned as collateral 
security, credited on the liens, without a showing that the note had 
been paid or converted to the plaintiff's use. 

Appeal from a judgment of the superior court for King 
county, Tallman, J., entered December 3^ 1903, in favor of 
the plaintiff, upon the pleadings and a stipulation, after re- 
fusing leave to file a supplemental answer, in an action to 
foreclose a mechanics' lien. Eeversed. 

F. C. Park and H. D. Moore, for appellants, upon the 
point that the filing of the supplemental answer was a mat- 
ter of right, cited: Wintermute v. Carrier, 8 Wash. 585, 
36 Pac. 490; Wade v. Gould, 8 Okl. 690, 59 Pac. 11; 
Richwine v. Preshyierian Church, 135 Ind. 80, 34 N. E. 
737; Peterson v. Albach, 51 Kan. 150, 32 Pac. 917; Mc- 
Domild i\ McDonald, 34 Wash. 293, 75 Pac. 865; Brooks 



BURNETT V. BWING. 47 

May 1905] Opinion Per Fulleston, J. 

V. Moody, 25 Ark. 452; Meacham Arms Co. v. Swarts, 
2 Wash. T. 412, 7 Pac. 859 ; Fleischner v. First Nat. Bank, 
36 Ore. 553, 54 Pac. 884, 60 Pac. 603, 61 Pac. 345; 
Seehom v. Big Meadows etc. Road Co., 60 Cal. 240 ; Var- 
riale v. Metropolitan St. R. Co., 66 N. Y. Supp. 559 ; Harris 
V. Elliott, 48 N. T. Supp. 1020; McDaniels v. Gowey, 
30 Wash. 412, 71 Pac. 12 ; Belles v. Miller, 10 Wash. 259, 
38 Pac. 1050; Hilliker v. Simpson, 92 Me. 590, 43 Atl. 
495 ; New York v. East Bay Land etc. Co., 58 X. Y. Supp. 
724; Crane v. Lowe, 59 Kan. 606, 54 Pac. 666; Dennison 
V. Willcut, 3 Idaho 793, 35 Pac. 908 ; Williams v. Moore- 
head, 33 Kan. 609, 7 Pac. 226. 

William B. Allison and Scott Calhoun, for respondent, 
contended, among other thingsi, that it was discretionary to 
refuse leave to file the supplemental answer. 21 Ency. 
Plead. & Prac, 20, 43, 73; Harrington v. Slade, 22 Barb. 
161. The defense was waived. 2 'Ency. Plead. & Prac, 
173; Nisbet v. Lawson, 1 Kelly (Ga.) 275; Thompson v. 
Perkins, 57 Me. 290; Hughes v. Feeter, 23 Iowa 547; 
Miller v. Macklot, 13 Ind. 217. 

FuLLEBTON, J. — On February 27, 1903, one Williams, 
as plaintiff, began an action in the superior court of King 
county, against D'Arcy Kirk and Emma Kirk, his wife, 
Albert M. Ewing and Lottie Ewing, his wife, and Olaf Olson, 
as defendants, to foreclose certain mechanics' liens on a lease^ 
hold interest, held by D'Arcy Kirk and Albert M. Ewing, 
in lot 12, of block "G," of A. A. Denny's addition to the 
city of Seattle. In his complaint the plaintiff alleged that 
there was a balance due him from Kirk and Ewing in the 
sum of $3,389.50, and that for such sum the liens set forth 
in his complaint were liens on the property above described, 
superior to the claims and interests of the defendants and 
each of them. 

Immediately after the action had been commenced, the 



48 BURNETl' V. BWINQ. 

Opinion Per Fullebton, J. [39 Wash. 

plaintiff entered into a written agreement with the defend- 
ant3 Kirk and Ewing, by the terms of which he agreed to 
take no further action in the case until November 1, 1903. 
And in consideration of the delay on the part of the plain- 
tiff, the defendants Kirk and Ewing agreed to turn over 
to the plaintiff all of the rentals, accruing and to accrue 
from the property between the date of the agreement and 
the date last named, to assign to him as further security 
a note and chattel mortgage held by them, of the face value 
$1,120, and to file an answer to the complaint admitting 
their liability for the amount sued for therein. It was fur- 
ther agreed that all sums paid before November 1, 1903, 
either for rentals, from collections on the note, or from 
other sources, should be credited on the lien claims prior 
to the rendition of judgment, and, if suflScient amount should 
be paid to satisfy the claims, then the action should be 
dismissed. The defendants thereupon assigned to the plain- 
tiff the note and mortgage mentioned, and filed an answer 
to the complaint, admitting all of its allegations. 

The matter rested in this condition until about August 
20, 1903, when the plaintiff, Williams, sold and assigned 
all of his interests in the action, and the claims and de- 
mands mentioned therein, to Charles H. Burnett, Jr., who 
was thereupon substituted as the plaintiff. On November 
2, 1903, Burnett moved for judgment on the'pleadings, which 
motion was duly served on Kirk and Ewing, and noted on 
the motion calendar. Thereupon the defendants Ewing and 
wife applied to the court for leave to file a supplemental 
answer, tendering the answer along with the application, 
supporting it by an affidavit to the effect that the allega- 
tions therein contained were tnle. This answer, .in sub- 
stance, alleged that Burnett was not the real party in in- 
terest, but was the agent and trustee of the defendant Olaf 
Olson ; that Olson had in fact purchased the liens, and that 
Burnett was holding them for his use and benefit: that 
Olson and the answering defendants held the leasehold in- 



BURNETT V. EWING. 49 

May 1905] Opinion Per Pullebton, J. 

terest on which the liens were sought to be foreclosed, as 
tenants in common, end that they, as tenants in common 
with Olson, claimed the benefit of the purchase of the out- 
standing incumbrances on the common property. Further 
answering, they alleged that they had paid on the claims, 
since filing their original answer, the sum of $204.60, and 
had turned over to the plaintiff a note and mortgage for 
$1,120, no part of which had been credited upon the indebt- 
edness represented by the liens. They prayed that the action 
be dismissed on the first defense interposed, or, in the alter- 
native, that they have credit for the amount paid and the 
amount of the note, as set out in the further defenses. 

The court refused to permit the answer to be filed, and 
entered judgment finding that the defendants were indebted 
to the plaintiff for the full amount stated to be due in 
the liens, and decreeing that the liens be foreclosed, and 
that the interests of all the defendants, except Olaf Olson, 
be sold to satisfy the amount found due thereon. The de- 
fendants Ewing and wife appeal from the judgment. 

The respondent first objects that the appellants are not 
entitled to be heard to question the order of the court re- 
fusing to permit them to file their supplemental answer, 
because they did not except to the order. But the order 
was one embodied in a written order and journal entry in 
the cause, and was a self-excepting order, under Bal. Code, 
§ 5051. No formal exception was necessary to make the 
order reviewable in this court. 

It is next urged that the answer itself is incomplete and 
insufficient, in that it does not set out with particularity 
and fullness the matters sought to be alleged. But this is 
not a reason for denying the appellants the right to answer 
at all. Doubtless, if the answer did not conform to the 
rules of good pleading, it would have been proper for the 
respondent to have moved against it after it was filed in 
the cause, but inasmuch as it contained the substance of a 

4—^ WASH. 



60 BURNETT V. BWING. 

Opinion Per Pullebton, J. [39 Wash. 

good defense^ to show that the defense was defectively stated 
was not a suflScient reason for refusing to permit it to be 
filed. 

It is said, however, that the answer does not even contain 
the substance of a good defense. We think it does. If it 
be true that Olson is a tenant in common with the appellants, 
in the ownership of the leasehold interest, he cannot buy 
up the outstanding incumbrances on that interest and fore- 
close them againet his cotenant; at least, not without some 
allegation showing that his cotenant is liable for the whole 
amount of such incumbrances and that he is not liable for 
any part of the same. No such showing appeared here. So 
far as the record discloses Olson's interests in the common 
property were subject to these liens. True, counsel in their 
brief have made a case for him, but we find in the record 
no support for the case made in the brief. 

But, if there were no merit in this branch of the case, the 
second defense stated in the answer required that the court 
permit it to be filed. It was there alleged that a part pay- 
ment had been made on the amount due on the liens, which 
had not been credited thereon. By the express terms of the 
agreement entered into at the time the action was com- 
menced, the appellants were entitled to have all sums so 
paid credited on the liens prior to the entry of judgment 
thereon, and the answers originally filed did not amount to 
a waiver of the right of the appellants to enforce this part 
of the agreement. 

With regard to the note assigned as additional security, 
the appellants could have the amount thereof credited on 
the lien indebtedness only in case the note had been paid, 
or the assignee had converted it to his own use. The answer 
does not maJce it clear whether either of these conditions 
had occurred at the time the answer was tendered, and is 
defective in that respect. However, it can be corrected, if 
moved against, after leave to file is granted. 

The judgment appealed from is reversed, and the cause 



GRISSOM V. HOFIUS. 51 

May 1905] Syllabus. 

remanded, with instructions to grant Uie application of the 
appellants to file a supplemental answer. 

Mount, C. J., Hadley, and Dunbae, JJ., concur. 

RuDKiN, EooT, and Ceow, JJ., took no part 



(No. 5166. Decided May 13, 1906.) 

J. E. Gbissom, Respondent, v. W. D. Hofius, Appellant} 

Animates — Vicious Dog — Partnership — Pleading and Pboof — 
Variance — Ownership of Dog — ^Partners of Defendant Not Joined. 
In an action for personal injuries sustained through the bite of a 
vicious dog, it Is not a variance that the complaint alleged that 
the dog belonged to the defendant and the proof showed that It was 
owned by a copartnership of which the defendant was a member; 
since the defendant was not misled nor prejudiced by the allega- 
tion that he owned the dog, and each partner is liable for the torts 
of the copartnership. 

Parties — Defect — Partnership — CJopa^btners Not Joined in 
Action of Tort — ^Waiver. One partner, sued for the torts of the 
copartnership, cannot take advantage of any defect in parties de- 
fendant, where the objection was not raised by demurrer or answer. 

Animals — ^Vicious Dog — Scienter — ^Knowledge of Keeper — ^Evi- 
dence — Sufficienct. In an action for personal injuries sustained 
through the bite of a vicious dog, there is sufficient evidence of the 
defendant's knowledge of vicious propensity, where it appears that 
the dog had previously bitten two other persons in the presence 
of defendant's watchman, who was the dog's keeper, and who on 
prior occasions had prevented the dog from attacking others, and 
that he was kept about the premises as a watch dog, although the 
defendant and the watchman denied any knowledge of vicious pro- 
Iienslty; since the watchman's notice of the dog's disposition was 
sufficient and was notice to the defendant. 

Same — Damages for Personal Injuries— When Not EIxcessive. 
In an action for personal injuries sustained through the bite of a 
vicious dog, a Judgment for $3,000 will not be reversed as excessive, 
where the plaintiff was confined to his bed for seven weeks, and 
suffered much pain, and at the trial, three months after the injury, 
his leg was stiff and the wound still a running sore, and where the 
jury returned a verdict for |4,000, which was reduced by the trial 
judge. 

1 Reported In 80 Pac. 1002. 



52 GRISSOM V. HOFIUS. 

Opinion Per Mount, C. J. [39 Wash. 

Appeal from a judginent of the superior court for King 
county, Albertson, J., entered October 28, 1903, upon the 
verdict of a jury rendered in favor of the plaintiff for per- 
sonal injuries sustained through the bite of a vicious dog. 
Affirmed. 

Ballinger, Ronald & Battle, for appellant, contended, 
among other things, that there was a fatal variance. Marsh 
V. Wade, 1 Wash. 538, 20 Pac 578; Memphis etc. R. Co. 
V, Chastine, 54 Miss. 503; 2 Thompson, Trials, § 2251; 
Silsby V. Aldridge, 1 Wash. 117, 23 Pac 836; Comegys 
V. Ameiican Lumber Co., 8 Wash. 661, 36 Pac. 1087 ; Say- 
ward V. Carlson, 1 Wash. 29, 23 Pac. 830. A partner ia 
not liable for the torts of his copartner, unless authorized 
or ratified, or done within the proper scope of the business. 
Story, Partnership, § 168 ; Graham v. Meyer, Fed. Gas. No. 
5,673 ; 1 Lindley, Partnership, p. 147 and note ; Collier, Part- 
nership (Perkins ed.), § 457 ; Gilbert v. Emmons, 42 111. 143, 
89 Am. Dec. 412 ; Durant v. Rogers, 71 111. 121 ; Marks v. 
Hastings, 101 Ala. 165, 13 South. 297; Taylor v. Jones, 
42 N. H. 25. liofius would have the right to contribution 
from his firm. 7 Am. & Eng. Ency. Law (2d ed.), 364-366; 
Smith V. Ayrault, 71 Mich. 475, 39 N. W. 724, 1 L. R. A. 
311; Ankeny v. Moffet, 37 Minn. 109, 33 K W. 320; 
Johnson v. Torpy, 35 Neb. 604, 53 N. W. 575, 37 Am. 
St 447. 

Brady £ Gay, for respondent. 

Mount, C. J. — Action for personal injuries caused by 
the bite of a vicious dog. Plaintiff recovered judgment be- 
low, and defendant appeals. 

The complaint alleges, in substance, that, on and prior 
to July 19, 1903, the defendant, W. D. Hofius, was the 
owner of a bulldog, known to him to be vicious, dangerous, 
and ferocious; that said Ilofius kept said dog on premises 



GRISSOM V. HOFIUS. 53 

May 1905] Opinion Per Mount, C. J. 

claimed by him, on the tide flats, in the city of Seattle; 
that across said premises there was a right of way, com- 
monly used by the public generally, with the knowledge and 
consent of said defendant; that on the 19th day of July, 
1903, while plaintiff was lawfully on said right of way 
going to his r^ular work, said dog, without any cause there- 
for, "ferociously, viciously, and maliciously bit and lacer- 
ated the plaintiff's left leg, causing the plaintiff great pain, 
suffering," etc. The defendant answered the complaint by 
a general denial, and pleaded affirmatively that the plaintiff 
was a trespasser on said premises at the time of said injury, 
and that plaintiff's injury was the result of his own neg^ 
ligence and fault. The reply of plaintiff denied the affirma- 
tive allegations of the answer. On these issues the case was 
tried to the court and a jury, which returned a verdict in 
favor of plaintiff for $4,000. Upon motion, this verdict 
was reduced to $3,000, which plaintiff elected to take, and 
a judgment was entered for that amount. 

Appellant argues, first, that the proof shows a fatal vari- 
ance from the allegations of the complaint. The complaint 
alleges, in substance, that the dog which bit and injured 
the plaintiff was owned and kept by the defendant, W. D. 
Hofius. The evidence of the plaintiff and his witnesses was 
to the effect that the dog was kept by a watchman on prem- 
ises owned by defendant Hofius, and that defendant ad- 
mitted that he was the owner of the dog. The evidence of 
the defendant shows that the dog was owned by "W. D. 
Hofius & Co.," a copartnership composed of W. D. Hofius 
and others. Toward the close of defendant's evidence, and 
after it had been shown that the dog was purchased by funds 
of the said copartnership, plaintiff's counsel announced that 
they would admit that the dog belonged to said copartner- 
ship at the time of the injury to plaintiff. Appellant then 
moved the court for a nonsuit upon the ground of a fatal 
variance, and that the evidence showed a defect of parties. 



54 GRISSOM V. HOFIUS. 

Opinion Per Mount, C. J. [39 Wash. 

This motion was denied by the court The statute upon the 
question of variance is as follows: 

"Xo variance between the allegation in a pleading and 
the proof shall be deemed material, unless it shall have 
actually misled the adverse party to his prejudice in main- 
taining his action or defense upon the merits." Bal. Code, 
§ 4949. 

There is no claim, and none can be made^ in this case^ 
that the variance actually misled the defendant to his preju- 
dice in maintaining his defense, because defendant well 
knew, lx)th before and after he filed his answer, that the 
dog belonged to the copartnership of which he was a mem- 
ber, and not to himself personally. He was, therefore, not 
misled as to tlie ownership of the dog. But, if he was mil- 
led by the allegation that the dog belonged to him person- 
ally and was maintained by him, he was not prejudiced 
thereby, because the rule is settled that each partner is liable 
for the torts of the copartnership, and an injured party may 
sue all the partners, or any one of them. Lindley, Partner^ 
ship, § 147 ; 15 Ency. Plead. & Prac, 877, and cases cited. 
It follows that, if plaintiflF had alleged that the dog was the 
property of, and maintained by, the partnership of W. D. 
Hofius & Co., tlie defendant Ilofius would still be liable 
under the facts shown. Appellant cannot now take advan- 
tage of the fact that there was a defect of parties. The own- 
ership of the dog was well known to the appellant The 
question was not raised by either demurrer or answer, and 
therefore was waived. Bal. Code, § 4911 ; Criswell v. School 
District, 34 Wash. 420, 75 Pac. 984. 

Appellant next contends that tlie verdict is contrary to the 
evidence, because It was not shown that defendant^ or any 
member of the copartnership, or tlie watchman who was 
keeper of the dog, had any knowledge of the vicious char- 
acter of the dog prior to the time of the injury complained 
of. It is true that all those witnesses testified that they did 
not know the dog was vicious prior to that time, but several 



GRISSOM V. HOFIUS. 55 

May 1905] Opinion Per Mount, C. J. 

of the plaintiff's witneeees testified to the vicious character 
of the dog, and that he had bitten at least two other persons 
prior to that time, in the presence of the watchman, and 
that the watdiman had, on other prior occasions, prevented 
the dog from biting others who were attacked without cause. 
It was also shown that the dog was procured and kept upon 
the premises with the watchman as a watchdog. In the casq 
of Robinson v. Marino, 3 Wash. 434, 28 Pac. 752, 28 Am. 
St. 50, this court said : 

'^The owner of a domestic animal is not liable, in the 
absence of statutory provision, for any injury it may inflict 
upon others, unless he has notice of its inclination to commit 
such an injury. But, according to the more modem and 
more reasonable doctrine, it is not necessary that he should 
have had actual positive notice. If he has notice that the 
disposition of the animal is such that it would be likely to 
commit an injury similar to the one complained of, it is 
sufficient. It is not necessary that the notice be of injury 
actually committed. Thus, in the case of a dog known to 
be vicious and ferocious by its keeper, it is unnecessary to 
show that he had previously bitten any person. The keeper 
of such a dog must see to it that he is kept securely, or be 
responsible for all injury done by him. ... In Muller 
V. McKesson, 73 N. Y. 195, it was held that in an action 
against the owner of a ferocious dog for injuries inflicted 
by it, proof that the animal is of a savage and ferocious 
disposition is equivalent to express notice. And it has even 
been held that the knowledge of the wife is the knowledge 
of the husband in such cases. 2 Shearman and Redfield on 
Negligence, § 630, note." 

And, also, that knowledge of the keeper is knowledge of the 
master. Corliss v. Smith, 53 Vt. 532 ; Brice v. Bauer, 108 
N. Y. 428, 15 K E. 695, 2 Am. St. 454; Hahnke v. 
Friederich, 140 N. Y. 224, 35 K E. 487. Under the rule 
as laid down in the cases above cited, there was sufiicient 
evidence to go to the jury as to whether or not the defendant 
knew, or should have known, the vicious disposition of the 
dog, and the verdict of the jury is conclusive of the question. 



66 GRISSOM V. HOFIUS. 

Opinion Per Mount, C. J. [39 Wash. 

Appellant next contends that the judgment for $3,000 is 
excessiva The evidence shows, that the bite caused a very 
severe wound at the knee of the left leg; that, soon after 
the wound was inflicted, blood poisoning set in, the leg turned 
black, and was much swollen. Respondent was confined to 
his bed for seven weeks, under the care of a physician and 
nurses. He suffered much pain. He testified that during 
that time he suffered much fear that hydrophobia would 
result from the wound. At the time of the trial, which 
occurred some three months after the date of the injury, 
the wound was still a running sore, and plaintiff's leg was 
stiff, and his surgeon testified that the 1^ might remain 
stiff permanently, but that it would probably become normal 
in time. Taking all these things into consideration — also, 
the fact that the jury returned a verdict for a larger amount, 
and that the trial judge who saw the condition of the respond- 
ent fixed the amouilt of the recovery at $3,000, we are not 
disposed to disturb the judgment as being excessive. 

Appellant contends lastly that the instructions given by 
the court to the jury were erroneous^ because the case was 
not submitted upon the theory that, if the appellant was 
liable at all, he was liable only as joint wrongdoer. But 
we have already held above that this question was waived 
by the appellant. It is imnecessary to discuss it further. 
We have examined all of the instructions given in the case, 
and find that they fairly presented the law of the case to 
the jury. 

There is no error in the record, and the judgment ap- 
pealed from is therefore affirmed. 

FuLLERTON, Hadley, and Dunbar, JJ., concur. 

EuDKiN, Root, and Crow, JJ., took no part. 



MUIR V. CITIZENS NAT. BANK. 57 

May 1906] Opinion Per Mount, C. J. 

(No. 5196. Decided May 15, 1906.) 

Robert Muir, Respondent, v. Citizens Xational Bank 

OF Faieiiaven, Appellant} 

Baxks and Banking — ^National Bank in Pbocess of Liquida- 
tion — Subsequent Tbansfeb of Stock — Entry on Books. A national 
bank, in process of voluntary liquidation, cannot be compelled to 
enter subsequent transfers of stock on its books and issue new 
certificates thereof; since, under U. S. Rev. Stats., § 6220, its busi- 
ness is closed for all purposes except winding up its aftairs, and a 
transferee of its stock is merely an equitable owner of an interest 
in tbe assets. 

Appeal from a judgment of the superior court for What- 
com county, Neterer, J., entered January 25, 1904, upon 
sustaining a demurrer to an answer, granting a mandatory 
injunction as prayed for in the complaint. Reversed. 

Kerr, McCord £ Craven and Fairchild & Bruce, for ap- 
pellant. 

Marshall P. Stafford, for respondent. 

Mount, C. J. — This action was brought for the purpose of 
obtaining an order against the defendant, requiring it to 
transfer to plaintiff six shares of its stock on the books of 
the corporation, and to issue to plaintiff, in his own name, 
a certificate therefor, in lieu of a certificate purchased from 
a former stockholder of record. The defendant appeared in 
the action, and filed a motion to strike certain words and 
make a more specific statement of some of the allegations 
of the complaint. These motions were denied, and thereupon 
a demurrer to the complaint was filed, which was also denied. 
Defendant thereupon filed an answer, denying certain alle- 
gations in the complaint, and alleging as an affirmative de- 
fense, in substance, that the defendant^ since Januai*y 10, 
1900, has been a national banking corporation, existing under 
the laws of the United States; that, prior to the oommenoe- 

1 Reported in 80 Pac. 1007. 



58 MUIR V. CITIZENS NAT. BANK. 

Opinion Per Mount, C. J. [39 Wash. 

ment of this action, defendant, being solvent^ went into vol- 
untary liquidation, under the provisions of U. S. Rev. Stats., 
§§ 5220, 5221. The plaintiff demurred to this answer, and 
the demurrer was sustained. The defendant declined to 
plead further, and a judgment was entered as prayed for 
in the complaint The defendant appeals. 

The motions to strike and make more definite are of no 
particular moment in the case, and we shall not notice them 
further, but will pass to the main question, which is: May 
a national bank, in process of voluntary liquidation, be com- 
pelled to make transfers of stock on its books^ and issue 
certificates thereof to new subscribers ? For a better under- 
standing of the question, we may state that the pleadings 
show that the appellant was organized as a national bank 
on January 10, 1900. On the 7th day of August, 1901, at a 
meeting of the stockholders, at which meeting the whole stock 
of the bank was represented, it was resolved, by a vote of all 
the stock, that the corporation be placed in voluntary liquida- 
tion, to take effect August 26, 1901, under the provisions of 
TJ. S. Rev. Stats., § 5220 et seq. The proceedings were there- 
upon certified and reported to the comptroller of the currency 
of the United States. Thereafter, on the 11th day of August, 
1903, respondent purchased from one of the stockholders six 
shares of the capital stock of said corporation, and received 
a certificate therefor, duly indorsed. Said certificate was 
thereupon presented to the cashier of said bank for transfer 
upon the books of the corporation. Such transfer was re- 
fused. It is admitted, also, that the corporation is solvent, 
and that the six shares are worth at least $300. 

It has frequently been held that a national bank in volun- 
tary liquidation is not thereby dissolved as a corporation, 
but may sue and be sued, by name, for the purpose of wind- 
ing up its business. National Bank v. Insurance Co., 104 
r. S. 54, 26 L. Ed. 693 ; Rosenhlatt v. Johnston, 104 TJ. S. 
462, 26 L. Ed. 832; Bank of Bethel v, Pahquioque Bank^ 
14 Wall. 3S3, 20 L. Ed. 840; Chemical Nat. Bank v. Hart- 



MUIR V. CITIZENS NAT. BANK. 69 

May 1905] Opinion Per Mount, C. J. 

• 

ford Deposit Co., ICl U. S. 1, 16 Sup. Ct. 439, 40 L. Ed. 
595- The decisions go no further than to hold that the cor- 
poration continues for the purpose of liquidation and wind- 
ing up its business, No decision has been called to our atten- 
tion, and after careful search we have found none, whidi 
holds tibat the stock of a corporation in liquidation, either 
voluntary or involuntary, may be the subject of traffic and 
transfer from one to another, upon the books of a corpora- 
tion, after it ceases to do business in the usual way. 

On the other hand the United States statute. Rev. Stats. § 
5220, referring to national banks, provides: "Any association 
may go into liquidation and be closed by a vote of its stock- 
holders owning two-thirds of its stock." The words "and be 
closed," seem to indicate a conclusion of its business as a going 
concern. Thereafter it may transact only such business as is 
necessary or proper in the settlement and winding up of its 
a£Fairs. The corporation, of course, continues under the de- 
cisions above cited for such purpose^ but for such purpose only. 
The closing of the business of the corporation for the purposes 
for which it was organized, while not a dissolution of the 
corporation, ig in substance a dissolution of its powers to 
transact new business. The only power left to it is the 
power to collect its dues and pay its debts, and to distribute, 
ratably among its stockholders, the balance after the debts 
are paid. The rights and liabilities of the stockholders of 
the bank are fixed at the date when the bank goes into 
liquidation, and a stockholder may not thereafter transfer 
his stock and avoid liability thereon. Bowden v, Johnson, 
107 U. S. 251, 2 Sup. Ct. 246, 27 L. Ed. 386; Schrader v. 
Bank, 133 U. S. 67, 10 Sup. Ct. 238, 33 L. Ed. 564; Irons 
V. Manufacturers' Nat. Bank, 17 Fed. 308 ; Crease v. Bab- 
cock, 23 Pick. 334, 34 Am. Dec. 61. 

If the power of the bank, after voluntary liquidation be- 
gins, is limited to final settlement and winding up of its 
affairs, it seems to follow tliat no new stock may be issued 
pending such settlement. The act of issuing new stock, or 



go MUIR V. CITIZENS NAT. BANK. 

Opinion Per Mount, C. J. [39 Wash. 

new and original cei-tificates of stock, would, upon its face, 
seem to contradict the fact that the corporation was in 
process of liquidation or of dissolution, and would indicate 
that the corporation was an active going concern. The policy 
of tlie statute is certainly opposed to the issuance of new 
certificates of stock pending the dissolution of the corpora- 
tion, or of any act which would belie the true condition of 
the corporation, and which is not necessary or proper in 
the final settlement and winding up of the affairs of the 
corporation. A stockholder may, no doubt> transfer and 
sell his stock in a banking corporation in process of liqui- 
dation, and the purchaser may acquire all the rights of such 
stockholder in and to the assets of the corporation. It is 
said: ". . . an assignment or transfer of stock by a 
stockholder after the dissolution of the corporation is merely 
an equitable assignment of his interest in the assets of the 
concern as it may appear upon the settlement." Cook, Cor- 
porations (5th ed.), § 641; James v. Woodruff, 10 Paige 
641; Richards v. Attleborough Nat. Bank, 148 Mass. 187, 
19 N. E. 353, 1 L. R. A. 781. The last case cited above 
is in point upon the facts in this case^ and holds in accord 
with the claim of appellant. It was there said: 

"The reasons for making the stock, as such, transferable, 
and allowing the purchaser by virtue of his purchase to 
become a mefmber of the corporation, cease to exist when 
there is no profit to be made, no business to be done, and 
when the property of the bank and its liabilities are fixed, 
and nothing remains but the adjustment of these. Whether 
the liquidation of the affairs of the bank be voluntary or 
involuntary, or whether it proceeds under the authority given 
to continue the bank in existence in order to close its affairs, 
it is necessarily implied that the respective rights, not only 
of the creditors and debtors of the bank, but of the stock- 
holders^ are to be determined as of the time when it com- 
mences. Indeed, were the stock, as such, to continue trans- 
ferable, serious embarrassments would arise. Where stock 
is sold in the ordinary course of business, and so transferred, 



MUIR V. CITIZENS NAT. BANK. 61 

May 1905] Opinion Per Mount, C. J. 

it is not important to the purchaser whether the bank has 
or has not claims against the stockholder so transferring 
stock. But when the bank is in liquidation, and when all 
to which the stockholder is entitled is his proportion of the 
assets, the claims which the bank may hold against him are 
a proper offset to those which he may hold against it by 
virtue of his ownership of stock. He cannot, therefore, place 
another in the position of a stockholder, even if he may invest 
him with such rights which he himself equitably may. have. 
• . . When a bank is in liquidation, the liability of the 
stockholder for the debts of the corporation has been fixed. 
If there is a debt due from the bank, he cannot transfer to 
any one else his liability to pay that debt, so as to affect 
the creditor or subject him, in seeking such remedies as he 
may have against the stockholders, to any examination beyond 
the list of those who were so when the liquidation com- 
menced. No further debts can be contracted thereafter, 
nor any transaction made except such as may result by im- 
plication from the duty of closing up its affairs. While the 
embarrassments that would arise from holding the stock of 
a bank transferable after it has once gone into liquidation 
are manifest, no reason incidental thereto exists why such 
stock should continue transferable." 

While the respondent in this case is the equitable owner 
of tlie fund which will result to the stock after the final 
settlement of the affairs of the bank, and while he has such 
rights as an equitable owner may have in the management 
of the trust, yet we think he has no right to be registered 
as a stockholder in the corporation and have a new certifi- 
cate of stock issued to him. The notice which was given 
to the cashier or liquidating agent, by presenting the six 
shares properly indorsed, is, no doubt, sufficient to put the 
corporation on notice that respondent is entitled to his dis- 
tributive share of the trust funds to be disbursed to the 
stockholders when final settlement is made, and would, if 
the bank were a going concern, entitle him to be registered 
as a stockholder and receive a certificate to that effect. But 
when the bank pleads that it is in process of liquidation 
under the law, this is a defense to a demand for a certifi- 



62 BROOKS V. McCABE ft HAMILTON. 

Opinion Per Mount, C. J. [39 Wash. 

cate of stock. It was therefore error to sustain the demurrer 
to the affirmative answer. 

The order appealed from is reversed, and the cause re- 
manded for further proceedings in accordance with this 
opinion. 

DuNBAB, FuLLEHTON, and Hadley, JJ., concur. 

EuDKiN, KooT, and Crow, JJ., took no part. 



(No. 5248. Decided May 15, IMS.) 

Ralph W. Brooks, Respondent j v. McCabe & Hamilton, 

Incorporated, Appellant} 

Tbial — Opening Statement of Counsel — ^When Ground for Dis- 
missal. A judgment for defendant on the merits, based upon the 
plaintifC's opening statement to the Jury, is Justified only when facts 
are admitted from which it affirmatively appears that there is no 
cause of action or that there is a complete defense, and the omission 
to Btate a case fully is not ground for such a Judgment 

Appeal — ^Review — Findings on Conflicting Evidence. A Judg- 
ment in an action for personal injuries, tried to the court without 
a Jury, will not be reversed upon questions of fact upon which there 
is conflict in the evidence, where the evidence is sufficient to sustain 
the findings of the trial Judge. 

Appeal from a judgment of the superior court for King 
county, Grifl^, J., entered March 12, 1904, upon findings 
in favor of the plaintiff, after a trial before the court with- 
out a jury, in an action for personal injuries sustained by 
a stevedore while storing grain in the hold of a ship. Af- 
firmed. 

Bicliard Saxe Jones, for appellant 
McCafferty £ Kane, for respondent. 

Mount, C. J. — Action for personal injuries. Plaintiff 
obtained a judgment for $450 in the court below. Defendant 

1 Reported in 80 Pac. 1004. 



BROOKS V. McCABE ft HAMILTON. Qg 

May 1905] Opinion Per Mount, C. J. 

appeals. The cause was tried to the court without a jury. 
The facts are substantially as follows: On the 14th day of 
Kovember, 1902, respondent was in the employ of appellant, 
storing away grain in the hold of a steamship^ Respondent 
had worked at this kind of work for several months. He 
had been employed at this job for four or five days. It 
was his duty, with other employees, to receive bags of grain 
on a table, in the hold of the shipi The bags were delivered 
upon the table by means of a chutei, about thirty feet long, 
extending from the table to the hatchway above. The chute 
consisted of two sections. The upper or main section was 
known as the "main" chute, and the other as the "tongurf' 
diute. The upper end of the main chute was attached to 
the coamings of the hatch, and this chute extended down- 
ward into the hold of the vessel. The lower end of the 
main chute fitted into the upper end of the tongue chute. 
At this junction, the two chutes were placed upon a bar of 
wood or scantling, suspended horizontally by means of ropes 
attached to each end of the bar, and fastened securely to 
the coamings of the hatch above. The tongue chute ex- 
tended on down to the table, on which the lower end rested. 
Bags of grain, weighing from one hundred and twenty to 
one hundred and tliirty pounds each, were placed in the 
chute from the deck of the vessel, and were slid down upon 
the table in the hold, where respondent and other employees 
received the bags and stored them away. On the date named, 
a bag of grain, on its way down the chute, jumped therefrom 
and struck the respondent, injuring his leg. 

The complaint alleged, and the court found, that the ap- 
pellant was negligent in permitting the chute to become and 
remain in a defective condition, after its foreman had had 
notice thereof; that one end of the horizontal bar sup- 
porting the main chute and tongue chute, at the junction 
thereof, was lower than the other end; and it is claimed 
that, by reason of this defect, the bag which injured re- 
spondent was thrown from the chute. It is also claimed that 



34 BROOKS V. McCABE & HAMILTON. 

Opinion Per Mount, C. J. [39 Wash. 

respondent did not know of the defect, and that it was not 
apparent; that the duty of the foreman was to keep it in 
repair. 

When the cause came on for trial, and after counsel for 
respondent had made the opening statement to the court, 
the appellant objected to any evidence, for the reason that 
the complaint failed to state a cause of action, and that 
the opening statement "shows that there is nothing here for 
the court to try." These objections were denied. This 
court has held that a demurrer of this kind will be treated 
as an attack upon the complaint after verdict, and that every 
reasonable intendment and legitimate inference susceptible 
of being drawn from the facts stated will be applied in aid 
of the complaint. Prescott v. Puget Sound Bridge etc. Co., 
31 Wash. 177, 71 Pac. 772. Tested by this rule, the com- 
plaint was sufficient. It is unnecessary to set it out here. 
In the case of Redding v. Puget Sound Iron & Steel Works, 
36 Wash. 642, 79 Pac. 308, in speaking to the question of 
the statement of counsel, we said: 

"Counsel may state their case as briefly or as generally 
as they see fit, and it is only when such sitatement shows 
affirmatively that tliere is no cause of action, or that there 
is a full and complete defense thereto, or when it is ex- 
pressly admitted that the facta stated are the only facts 
which the party expects or intends to prove, that the court 
is warranted in acting upon it." 

The statement made by counsel in this case was not such 
as to bring it within the rule above quoted so as to warrant 
the court in dismissing the action. The objections were 
properly denied. 

Upon the merits of the case, appellant argues, that re- 
spondent assumed tlie risk ; that the evidence shows no neg- 
ligence on the part of the appellant ; that, if the appliances 
were in a defective condition, the fact was due solely to 
the negligence of a fellow servant ; and that the injury was 
caused by a pure accident. All these are questions of fact 



STATE EX REL. HAWES v. BREWER. 65 

May 1905] Statement oi Case. 

upon which there is conflict in the evidence. After a care- 
ful examination of the record, we are of the opinion that 
the evidence is sufficient to sustain the conclusions of the 
trial judge. 

The judgment is therefore affirmed. 

DuNBAK, Hadley, and Fullerton, JJ., concur. 

EuDKiN, Root, and Cbow, JJ., took no part. 



(No. 5281. Decided May 16. 1906.) 

The State of WAsiiiNOToiir, on the Relation of F. B. Hawes, 
Appellant, v. Feank Brewek, Sheriff etc., et ah. 

Respondents} 

Mandamus — Pleading — ^Demurrer — ^Practice. Ck>mmon law forms 
of pleading being abolished, sustaining a demurrer to a writ or 
affidavit In mandamus Is permissible, being In effect the quashing 
of the writ. 

Mandamus — ^To Compel Prosecution of Crimes — Sunday Laws — 
ExFoacxMENT — ^NEGLECT OF DuTY A MISDEMEANOR. Maudamus wlll not 
He to compel peace officers to prosecute all persons violating the 
laws respecting the keeping of places of business open and selling 
goods and liquors, etc., on Sunday, since no specific thing is pointed 
out to be done, and mandamus does not lie to compel a general 
course of official conduct, and since Bal. Code, § 7252, provides a 
specific remedy by making neglect of such official duty a mis- 
demeanor. 

Appeal from a judgment of the sui)erior court for Sno- 
homish county, Denney, J., entered June 11, 1904, upon 
sustaining a demurrer to the complaint, dismissing an appli- 
cation for a writ of mandate. Affirmed. 

E. C. Dailey and Frank D. Lewis, for appellant. 

jB. a. Hulbert, Hathaway & Alston, and Bell £ Austin, 
for respondents. 

iReported in 80 Pac. 1001. 

5—80 WASH. 



66 STATE EX REL. HAWES v. BREWER. 

Opinion Per Dunbar, J. [39 Wash. 

DuNBAB, J. — Tliis is an action in mandamus, brought in 
the superior court of Snohomish county, wherein the state 
of Washington, on the relation of F. B. Hawes, is plaintiff, 
and Frank Brewer, sheriff of Snohomish county, and Edward 
J. Dwyer, marshal of the city of Everett, Washington, are 
defendants. The affidavit of relator alleges, that it is the 
duty of said officers, under and by virtue of their oath of 
office, and of the laws of the state of Washington, to enforce 
the laws of said state, and make complaint against and prose- 
cute all persons who violate the laws of said state against 
keeping saloons, cigar stands^ and other places of business 
open for the purpose of trade or sale of goods on the first 
day of the week commonly called Sunday, or who sell or 
dispose of any intoxicating liquor on Sunday, as aforesaid, or 
who rent houses for the purpose of prostitution or who gamble 
or run gambling houses; and, in fact, to complain of and 
prosecute persons who commit offenses against the criminal 
laws of the said state of Washington. It alleged that said 
laws have been, for a long time past, openly and notoriously 
violated in said city, in that saloons, cigar stands, etc., have 
been kept open on Sunday for the purpose of trade, and 
that houses are being, and have been, rented in said city 
for the purpose of prostitution, and that gambling with slot 
machines has been carried on, and at length reciting the 
perpetration of the crimee and misdemeanors committed in 
the city; that demand had been made upon defendants to 
enforce the laws of said state against the violators thereof; 
that said defendants, and each of them, have utterly failed, 
neglected, and refused to enforce said laws, or any of them. 
This is the substance of the affidavit. And the demand 
was made that an alternative writ of mandamus issue to 
said defendants, requiring them to enforce said laws, and 
prosecute all persons giiilty of the violation thereof, or to 
show cause to the court why they neglected and failed so 
to do. 



STATE EX REL. HAWES v. BREWER. 67 

May 1905] Opinion Per Dunbab, J. 

A peremptory writ was issued, and upon the hearing a 
demurrer was interposed to the complaint: first^ that the 
court had no jurisdiction of the subject-matter of said action ; 
second, that the plaintiff had no legal capacity to sue ; third, 
that there was a defect of parties plaintiff and defendant; 
fourth, that the complaint did not state facts sufficient to 
constitute a cause of action. The demurrer being sustained, 
judgment was entered, and from such judgment this appeal 
was taken. 

It is insisted by the appellant, first, tliat the court erred 
in sustaining the demurrer and in dismissing the action, 
because there is no provision for a demurrer to the writ 
or affidavit in mandamus. We think there is no merit in 
this contention. The common law forms of pleading have 
been abolished by the code, and tlie demurrer in this instance 
was in effect a motion to quash the writ, and the sustaining of 
the demurrer was in effect the quashing of the writ. The view 
we take of the merits of the case renders it unnecessarv to 
pass upon the proposition that the defendants could not be 
joined in the same action, as we think there is no cause 
of action stated in the affidavit. 

The office of mandamus is to compel an officer to per- 
form a ministerial duty, and the writ cannot be used for 
the purpose of compelling the performance of a duty which 
requires the exercise of discretion. It is insisted by the re- 
spondent that this question cannot be considered in tliis case, 
for the reason that the demurrer admits all the facts stated 
in the complaint, and that it was stated that the commis- 
sion of crime was open and notorious. The allegations of 
the complaint are admitted for the purpose of raising the 
questions of law which are to be determined on the demurrer 
in this case; namely, that the respondents held certain offi- 
cial positions and that the suit was brought to compel them 
to commence actions, and that it seeks to compel a general 
course of official conduct, which the courts are not author- 
ized to do. Mandamus will not lie to compel a general 



68 STATE EX REL. HAWES v. BREWER. 

Opinion Per Dunbar, J. [39 Wash. 

course of official conduct, as it is impossible for a court 
to oversee the performance of such duties. 13 Ency. Plead. 
& Prac., p. 497. 

It will be seen, in this case, that the remedy sou^t was 
entirely too general to be at all practical. It is true that 
we decided in State ex rel. Orinsfelder v. Spokane St. R. 
Co., 19 Wash. 518, 53 Pac. 719, 67 Am. St. 739, 41 L. 
R. A. 515, that mandamus would lie to compel a street 
railway company to resume the operation of a line which it 
had discontinued. But there was one specific thing which 
the street railway company was required to do which in- 
volved the entire controversy. But here there is a general 
course of official conduct sought to be compelled. There is 
no specific allegation of violation of duty in the petition. 
There is no statement of any commission of crime by any 
particular person, and we are unable to conceive to what 
effect an action for contempt could be prosecuted in case 
there was a refusal on the part of defendants to obey the 
injimction of the court. The alternative writ in this case 
is an instance of the inefficiency of such proceedings. The 
writ, after reciting the violation of the law, proceeded as 
follows : 

^'Xow, therefore, being willing that justice be done in the 
premises, you and each of you are hereby commanded im- 
mediately to complain of and prosecute any and all persons 
violating any of the laws of the state of Washington, in 
said city of Everett, in manner and form hereinbefore de- 
scribed, and that tlienceforth you and each of you perform 
each and every duty enjoined upon you by the laws of 
said state of Washinf]:ton, in said city, or that you appear 
before the above entitled court at the court house in said 
city of Everett, Washington, on the 21st day of May, 1904, 
at ten o'clock in the forenoon of said day, and show cause, 
if any you can, why you refuse so to do." 

The demand is for a continuing course of action. The writ 
cannot be any more specific than the petition, and the writ 
which must necessarily issue under a petition of this kind. 



STATE EX REL. HAWES v. BREWER. 69 

May 1905] Opinion Per Dunbab, J. 

and which was peremptorily issued, is no more effective than 
the statute. Each equally commands the officer to perform 
his duty. One is the announcement of the law by the law 
making power, the other is the announcement of the law by 
the court. The remedy by mandamus contemplates the neces- 
sity of indicating the precise thing to be done. It is not 
adapted to cases calling for continuous action, varying ac- 
cording to circumstances. It is the office of mandamus to 
direct the will, and obedience is to be enforced by process 
for contempt. It is therefore necessary to point out the 
very thing to be done; and a command to act according 
to circumstances would be futile. 13 Ency. Plead. & Prac, 
p^ 497, and cases cited. 

Bal. Code, § 7252, provides that, 

"Any. public officer who shall refuse or wilfully neglect 
to inform against and prosecute offenders against the last 
preceding section [which is the section under which this 
action is brought] shall be deemed guilty of a misdemeanor, 
and on conviction shall be punished by a fine of not less than 
twenty-five dollars nor more than one hundred dollars, and 
the court before which such officer shall be tried shall de- 
clare the office or appointment held by such officer vacant 
for the remainder of his term." 

Here is a specific remedy pointed out by the statute, and 
the remedy which must be resorted to by the citizen, in case 
of violation of duty by the officer. 

The judgment is affirmed. 

Mount, C. J., Fulleston, and Habley, JJ., concur. 
EuDKiN, Root, and Ceow, J J., took no part 



70 cox V. TOMPKINSON. 

CitationB of Counsel. [39 Wash. 



(No. 5370. Decided May 19. 1906.) 

Geobge H. Cox et ah. Respondents, v. Lucy Tompkinsok 

et ah. Appellants} 

Descent and Distribution — Homestead — Death of Wife Puob 
TO Issuance of Patent — Rights of Ghildben. Where a married 
man makes a homestead entry, and, upon the death of the wife 
before making final proof, a patent is issued in his name, the chil- 
dren, as heirs of the mother, acquire a one-half interest in the land. 

Adverse Possession — By Tenant in Common — ^Notice to Ootew- 
ant — Sufficiency — Estoppel. The acts of a father are sufficient 
to imply hostility of title and to give publicity to uis claim of own- 
ership, so as to confer title to the homestead by adverse iK>sse8sion 
as against his daughter, where two years after the death of his 
wife in 1886, he made final proof and received a patent, and, be- 
lieving himself to be the sole owner of the land, immediately there- 
after dedicated streets and platted city lots, put them on the market, 
conveying by warranty deed, and maintained exclusive control over 
the property, and where the daughter stood by and saw valuable 
improvements made by the purchasers, and by the city in the streets, 
making no claim to the property, although receiving legal advice 
in 1891 as to her rights, until 1898« when she made deeds of her 
interest, but only for the purpose of clouding the title and com* 
pel ling the owners to bring actions to quiet title; no verbal or 
written notice being necessary to start the running of the statutes 
against a tenant in common. 

Same — Payment of Taxes — Purchaser at Mortoaqe Foreclosure. 
Entry under a mortgage foreclosure sale is sufficiently adverse to 
start the running of the statute against one not a party to the 
suit, under Bal. Code, §§ 5503, 5504, conferring title by adverse pos- 
session upon the payment of taxes for seven years under claim of 
title made in good faith. 

Apjx?al from a judgment of the superior court for Spo- 
kane count}^, Kennan, J., entered April 23, 1904, upon find- 
ings in favor of the plaintiffs, after a trial before the court 
without a jury, in an action to quiet title. Affirmed. 

Bronaxigh & Bronaugh, and R, L. Edmiston, for appellants. 
The fatlier and daughter were tenants in common. Hill 

1 Reported in 80 Pac. 1005. 



cox V. TOMPKINSON. 71 

May 1905] Citations of Counsel. 

t\ Young, 7 Wash. 33, 34 Pac. 144; Mahie v. Whittaher, 
10 Wash. 656, 39 Pac. 172 ; Bjmerland v. Eley, 15 Wash. 
101, 45 Pac 730; Yermont Loan & Trust Co. v. Cardin, 
19 Wash. 304, 53 Pac. 164. Tenants in common will not* 
be permitted to act in hostility to one another in reference 
to the joint estate. Yarwood v. Johnson, 29 Wash. 643, 
70 Pac 123; Turner v. Sawyer, 150 U. S. 578, 14 Sup. Ct. 
192 ;Weare v. Van Meter, 42 Iowa 128, 20 Am. Kep. 616; 
Sorenson v. Davis, 83 Iowa 405, 49 N. W. 1004; Tanney v, 
Tanney, 159 Pa. St. 277, 28 Atl. 287, 39 Am. St 678; 
Phillips V. Wilmarih, 98 Iowa 32, 66 N. W. 1053 ; Boyd 
V. Boyd, 176 111. 40, 51 N. E. 782, 68 Am. St. 169; Bal. 
Code, §§ 1736-1738 ; Burgert v. Caroline, 31 Wash. 62, 71 
Pac. 724, 96 Am. St. 889. Time alone will not dissolve 
the relation. Hawk v, Senseman, 6 Serg. & B. 20 ; Yarwood 
V. Johnson, supra; Leake v. Hayes, 13 Wash. 213, 43 Pac 
48, 52 Am. St. 34; Mahie v. Whiftaker, supra. Mortgages 
or conveyances by one tenant will not dissolve the relation. 
Leach V. Hall, 95 Iowa 611, 64 N. W. 790 ; Bums v. Byrne, 
45 Iowa 285 ; McMahill v. Torrence, 163 111. 277, 45 X. 
E. 269 ; Holley v. Hawley, 39 Vt. 525, 94 Am. Dec. 350 ; 
Leach v. Bcattie, 33 Vt. 195; Culver v. Rhodes, 87 N. Y. 
348 ; Forward v. Dectz, 32 Pa. St. 69 ; Breden v. McLaurin, 
98 X. C. 307, 4 S. E. 136; Tharpe v. Holcomb, 126 N. C. 
365, 35 S. E. 608 ; Hudson v. Coe, 79 Mc 83, 8 Atl. 249, 
1 Am. St 288. Xor will a sheriif's deed. McMahill v. 
Torrence, supra. The seven years' payment of taxes does not 
confer title unless possession is taken. Paullin v. Bale, 40 
111. 274; Whitney v. Stevens, 77 111. 585; Travers v. Mc- 
Elvain, 200 111. 377, 65 X. E. 623 ; Harding v. Butts, 18 
111. 502. Cox was not justifiably ignorant of opposing rights 
and his claim of title was not made in good faith. Robson 
V. Osbom, 13 Tex. 298 ; Deffeback v. Hawke, 115 U. S. 392, 
6 Sup. Ct 95 ; Litchfield v. Sewell, 97 Iowa 247, 66 X. W. 
104; Lindt v. Uihlein, 116 Iowa 48, 89 N. W. 214. It was 
the purchaser's duty to look beyond the record. Sadler v. 



72 cox V. TOMPKINSON. 

Opinion Per Fullebton, J. [39 Wash. 

Niesz, 5 Wash. 182, 31 Pac. 630, 1030; Bracka v. Fish, 
23 Wash. 646, 63 Pac. 561 ; Dane v. Daniel 23 Wash. 379, 
63 Pac. 268; Mann v. Young, 1 Wash. T. 454; Dormitzer 
V. German 8av. & Loan Soc, 23 Wash. 132, 62 Paxj. 862. 
The seven year statute does not apply to tenants in common. 
Cooler V. Dearborn, 115 111. 509, 4 N. E. 388. The fol- 
lowing is a parallel case : McMahill v. Torrence, supra. 

Crow & Williams, for respondents, contended, among 
other things, that an ouster may be shown by any evidence 
tending to show a repudiation of the right of a cotenant 
1 Am. & Eng. Ency. Law (2d ed.), 804-806; Ricard r. 
Williams, 7 Wheat. 59; Dubois v, Campau, 28 Mich. 304; 
Oglesby v. Hollister, 76 Cal. 136, 18 Pac. 146, 9 Am. St. 
177; Miller v. Bledsoe, 61 Mo. 96. The respondents had 
color of title under claim made in good faith. 1 Am. & 
Eng. Ency. Law (2d ed.), 869; Simons v. Drake, 179 111. 
62, 53 X. E. 574; Lee v. O'Quin, 103 Ga. 355, 30 S. E. 
356; Wilson v. Atkinson, 77 Cal. 485, 20 Pac. 66, 11 Am. 
St. 299 ; Clapp v. Bromagham, 9 Cowen 530 ; Ware v. Bar- 
low, 81 Ga. 1, 6 S. E. 465 ; Lee v. Ogden, 83 Ga. 325, 10 
S. E. 349; Burgeit v. Taliaferro, 118 111. 503, 9 N. E. 334; 
McCagg v. Heacock, 34 111. 476, 85 Am. Dec 327 ; Rawson 
V. Fox, 65 111. 200 ; Smith v. Ferguson, 91 111. 304 ; Conner 
V. Goodman, 104 111. 365; Street v. Collier, 118 Ga. 470, 
45 S. E. 294 ; Brooks v. Bruyn, 35 111. 392. 

FuLLERTON, J. — This is an action to quiet title to certain 
lots and blocks in Muzzy's addition to the city of Spokane. 
The facts shown by the record are, in substance, these: 
On November 15, 1880, one Ilirman Muzzy made a home- 
stead entry on a certain quarter section of land, situate near 
the city of Spokane, and, together with his family, con- 
sisting of his wife and five children, took up his residence 
thereon. On January 6, 1886, Mrs. Muzzy died, leaving 
as one of the heirs at law the appellant Lucy Tompkinson. 
In the early part of the year following. Muzzy made final 



cox V. TOMPKINSON. 73 

May 1905] Opinion Per Fullerton, J. 

proofs on his homestead, and on June 2, 1887, received his 
final receiver's receipt therefor. Patent was issued on May 
26, 1888. Immediately after receiving his final receiver's 
receipt, Muzzy platted a considerable portion of the prop- 
erty into streets, alleys, lots, and blocks, under the designa- 
tion of "Muzzy's Addition to Spokane Falls;" and, after 
dedicating in writing to the public use forever the streets 
and alleys shown thereon, caused the same to be filed, as 
provided for by law. On August 8, 1892, Muzzy, in consid- 
eration of the sum of $5,000, then loaned him by the re- 
spondent George IT. Cox, executed and delivered to Cox a 
mortgage on the lots and blocks in question in this action, 
the same being a part of the addition, so platted as above 
stated, to secure the repayment of the loan. Muzzy there- 
after defaulted in the payments provided for in the mort- 
gage, and the same was foreclosed, and the property sold 
on February 6, 1894. The respondents purchased the prop- 
erty at the sale, receiving a certificate of sale at that time and 
a sheriffs deed on February 7, 1895. Immediately after 
the sale the respondents entered into possession of the prop- 
erty, and, from that time down to the commencement of 
this action, have maintained such possession to the exclusion 
of every one else^ and have paid all the taxes that were law- 
fully levied and assessed thereon as the same matured — a 
period of more than seven years. 

After the death of his wife, Muzzy believed himself to 
be the owner in fee of the homestead property. He at once 
assumed sole and exclusive dominion and control over it, 
put such of it as he had platted into lots and blocks on 
the market for sale, and has sold many of the lots to per- 
sona who purchased them for residence and business pui- 
poses, giving warranty deeds to such purchasers. In short, 
the evidence shows that Muzzy not only claimed to be the 
sole owner in fee of the property, but has exercised such 
rights over it as one usually exercises over his own. Of 
the lots sold, many of them were improved by the pur- 



74 cox V. TOMPKINSON. 

Opinion Per Fullebton, J. [39 Wash. 

shasers by the erection of costly and permanent buildings, 
and the streets shown on the plat were at once assumed by 
the i)eople and city authorities of the city of Spokane to 
be public streets, and have been used by them ever since as 
such. The city also has improved the streets by grading 
them and constructing sidewalks thereon, and has laid, and 
permitted to be laid, water mains and gas pipes therein- 

The appellant Lucy Tompkinson lived with her father on 
the homestead claim, after tlie death of her mother, until 
August, 1887, at which time she married and went to the 
homo of her husband. Shortly thereafter she became 
estranged from her father, and no longer visited at his home, 
or permitted him to visit her. She has lived, however, 
ever since her marriage, either in the city of Spokane or 
within five miles therefrom, and knew that the homestead 
property was being disposed of by her father to persons 
who purcliased on the faith of his title, and knew at all 
times of the improvements that were being made on the 
property. It was shown that, as early as 1891, she took 
the advice of counsel as to her interests in the property, but 
took no active steps to make known her claims until some- 
time in 1898, when she executed deeds to certain parts of 
the property to her co-appellants herein, which were filed 
and placed of record without delivery. It is conceded, how- 
ever, that these deeds were not executed for the purpose 
of conveying such title as she claimed and possessed to 
the grantees named therein, but for the purpose of clouding 
the title, and compelling persons claiming through Muzzy 
to bring actions against her. 

On the foregoing facts, the trial court held that the ap- 
pellant Lucy Tompkinson, as heir to her mother, acquired 
title to an undivided one-tenth interest in the homestead 
property, on the issuance of the patent by the government 
to her father, but that she had been divested of such title 
by the operation of the statute of limitations, and was now 
estopped from asserting any interest therein. A decree was 



cox V. TOMPKINSON. 75 

May 1905] Opinion Per Fullebton, J. 

thereupon entered quieting in the respondents the title to 
the property described, from which decree she and her co- 
defendants appeal. 

Under the rule announced by this court in the case of 
Ahem v. Ahem, 31 Wash. 334, 71 Pac. 1023, 96 Am. St. 
912, the appellant Tompkinson undoubtedly acquired, as 
heir to her nilother, an undivided one-tenth interest in the 
land in dispute^ on the acquisition of the legal title thereto 
by her father, so that the sole question to be determined 
hero is, has she lost that interest by failing to assert it 
within the statute of limitations ? It seems to us there can 
be but little question that she has. Her counsel do not 
deny that one tenant in common may hold the common prop- 
erty adversely to another, even though the cotenants bear 
the relationship of father and dau^ter, but they contend 
that possession by one cotenant does not become adverse to 
another until that other is definitely notified by the co- 
tenant in possession that he disputes and disavows any claim 
of interest made by the other; and counsel argue that the 
facts fail to show that any such notification was given in 
this. case. But we think coimsel make too broad a state- 
ment of the rula 

As the possession of land, held by a common title by one 
tenant in common, does not imply hostility, as does posses- 
sion by a stranger to the title, stronger evidence is required 
to show an adverse holding by a tenant in common than 
by a stranger, but the evidence need not differ in kind. 
Actual verbal or written notice is not necessary to start tlie 
statute running in such a case. If there be outward acts 
of exclusive ownership by the tenant in possession, of such 
a nature as to preclude the idea of a joint ownership, brought 
homo to the cotenant,* or of so open and public a character 
that a reasonable man would discover it, it is sufficient. 
1 Cyc. 1071, et seq. The facts in the case before us we think 
show conclusively that the possession of Iliram Muzzy of 



Yg cox ^. TOMPKINSON. 

Opinion Per FuixiaiTON, J. [39 Wash. 

the homeetead property was at all times adverse to the ap- 
pellant He not only had and maintained exclusive control and 
dominion over it as long as he retained the title^ but his 
outward acts with reference thereto were inconsistent with 
any other idea than that of sole ownership. We think, too, 
they were of sufficient publicity and notoriety to put the 
appellant upon notice of his claim. It would be difficult 
to give more publicity to one's claim of ownership and title 
to real property than to plat the same into lots and blocks 
as an addition to a city, and sell and convey such lots by 
deeds of warrantv. 

But if the general statute of limitations could not be 
successfully pleaded, the respondents can claim title under 
sections 5503 and 5504 of the code. Their entry into posses- 
sion under the title acquired at tlie foreclosure sale was suf- 
ficiently adverse to start the statute running. Cain v. Fur- 
low^ 47 Ga. 674. And their possession and payment of taxes 
for a period of seven years conferred title on them under 
the sections cited. Philadelphia Mtg. & Trust Co. v. Palmer, 
32 Wash. 455, 73 Pac. 501. 

We conclude that the respondents have title to the property 
in question, and are entitled to have such title quieted in 
tliemselves. 

The judgment appealed from will therefore stand affirmed. 

Mount, C. J., Dunbak, and Hadley, JJ., concur. 
RuDKiN, Root, and Chow, JJ., took no part. 



WILLIAMS V. SPOKANE FALLS ft N. R. CO. 77 

May 1905] Statement of Case. 



Herbert L. Williams, Respondent, v. Spokane Falls & 
XoRTHERN Railway Company, Appellant} 

Cabriebs — Neglioeitce — Pbesumftion fbom Fact of Collision. 
There is a presumption of negligence upon the part of a railroad 
company from the fact that a passenger's injury was due to an un- 
explained disconnection of the coupler in switching cars on a side 
track, causing a collision; since evidence that the injury was due 
to the operation of the road makes out a prima facie case. 

Same — Collision — ^Disconnection of Coupler — ^Evidence of Nbg- 
LiGRNCL — Sufficiency. In an action for personal injuries sustained 
through the colliding of cars being switched on a side track with a 
postal car standing thereon, there is sufficient evidence of defend- 
ant's negligence, where it appears that the accident was due to the 
fact that the cars became detached from the switch engine, and that 
the coupling had come apart several times before, to the knowledge 
of the company's servants, who threw ofF safety chains simply for 
the purpose of expediting the business. 

Trial — ^Aroument of Counsel — ^Reading Law to Jury. It is not 
prejudicial error that counsel in argument to the jury was per- 
mitted to read from law books, when the same was in accord with 
the law given by the court to the jury, and the jury was not misled 
nor the party prejudiced thereby. 

Carriers — Duty to Passengers — ^Degree of Care — Instructions. 
In an action by a passenger against a railroad company for injuries 
sustained in a collision, it is proper to instruct that the railroad 
company owed the duty to carry the plaintiff safely so far as human 
care and skill would enable it to be done, and to use the utmost 
vigilance and exercise the highest degree of prudence and caution 
in running its trains so as to prevent injury; and a qualification 
respecting the practical operation of the business is not essential. 

Same — Custom of Other Roads. In such a case the duty of the 
defendant is not measured by the degree of care customarily exer- 
cised by other roads. 

Appeal from a judgment of the superior court for Spo- 
kane county, Richardson, J., entered May 27, 1904, upon 
the verdict of a jury rendered in favor of the plaintiff, for 
personal injuries sustained by a mail clerk in a collision. 
Affirmed. 

1 Reported in 80 Pac. 1100. 




i 30 77 
(No. 6338. Decided May 22» 1906.) {942 598i 



78 WILLIAMS V. SPOKANE FALLS ft N. R. CO. 

Citations of Counsel. [39 Wash. 

M. J. Gordon and C. A. Murray, for appellant, contended, 
among other things, that counsel should not be permitted 
to read to the jury from law books. Johnson v. Culver, 
116 Ind. 278, 19 K E. 129; Tuller v. Talbot, 23 111. 357, 
76 Am. Dec 695 ; Baker v. Madison, 62 Wis. 137, 22 X. 
W. 141, 583; People v. Anderson, 44 Cal. 65; Mullen v. 
lleinig, 72 Wis. 388, 39 N. W. 861; Steffenson v, Chicago 
etc. R. Co., 48 Minn. 285, 51 X. W. 610 ; Baldwins Appeal, 
44 Conn. 37 ; Phoenix Ins. Co. v. Allen, 11 Mich. 501, 83 
Am. Dec. 756; Sullivan v. Royer, 72 Cal. 248, 13 Pac. 655, 
1 Am. St. 51; Sprague v. Craig, 51 111. 288; Ordway v. 
Ilaynes, 50 X. H. 159; Chicago v. McGiven, 78 111. 347; 
Porter v. Choen, 00 Ind. 338 ; Williams v. Brooklyn Elev. 
R. Co., 126 X. Y. 96, 26 X. E. 1048 ; Scott v. Scott, 124 
Ind. 66, 24 X. E. 666; Evansville v. Wilter, 86 Ind. 414; 
Cory v. Silcox, 6 Ind. 39 ; Const., art 4, § 16. A carrier 
is bound to exercise only the highest degree of care consistent 
\viih the practical conduct of its business, and such as is cus- 
tomary under similar circumstances. Johnson v. Seattle 
Electric Co., 35 Wash. 382, 77 Pac. 677; Hoffman v. Ameri- 
can Foundry Co., 18 Wash. 287, 51 Pac. 385 ; Hawkins v. 
Front St. Cable R. Co., 3 Wash. 592, 28 Pac. 1021, 28 
Am. St. 72, 16 L. R. A. 808; Allen v. Northern Pac. R. 
Co., 35 Wash. 221, 77 Pac. 204 ; 4 Elliott, Railroads, § 1585 ; 
Furnish v. Missouri Pac. R. Co., 102 Mo. 438, 13 S. W. 
1044, 22 Am. St. 781; Oviatt v. Dakota Cent. R. Co., 43 
Minn. 300, 45 X. W. 436; Louisville City R. Co. v. Weams, 
80 Ky. 420; Arkansas etc. R. Co. v. Canman, 52 Ark. 517, 
13 S. W. 280. 

Graves & Graves, for respondent, to the point that de- 
fendant owed plaintiff the legal duty of exercising the highest 
degree of care and diligence, cited: Northern Pac. R. Co. 
v. Iless, 2 Wash. 383, 26 Pac. 866; Sears v. Seattle Consol. 
St. R. Co., 6 Wash. 227, 33 Pac. 389, 1081: Cogswell v. 
West St. R. Co., 5 Wash. 46, 31 Pac. 411; Clukey v. Se- 



WILLIAMS V. SPOKANE FALLS & N. R. CO. 79 

May 1905] Citations of Counsel. 

attle Electric Co,, 27 Wash. 70, 67 Pac. 379 ; Cooley, Torts, 
768, 769; Stokes v. Saltonstall, 13 Pet. 181; Maverick v. 
Eighth Ave. R. Co., 36 X. Y. 378 ; Laing v. Colder, 8 Barr 
(Pa.) 479; Philadelphia etc, R. Co. v. Anderson, 96 Pa. St. 
351; Taylor v. Grand Trunk R. Co., 48 N. H. 304; Dert- 
wort V. Loomer, 21 Conn. 244; Dirst v. Morris, 14 How. 
484; Steamboat New World v. King, 16 How. 469; Penn- 
sylvania R. Co. V. Roy, 102 U. S. 451 ; Topeka City R. Co. 
V. Higgs, 38 Kan. 375, 16 Pac. 667, 5 Am. St. 754 ; OgiUvie 
V. Washburn, 4 Iowa 548 ; Canfield v. Bates, 13 Cal. 606 ; 
Dougherty v. Missouri R. Co., 97 Mo. 647, 8 S. W. 900, 
11 S. W. 251; Coddington v. Brooklyn Crosstown R. Co., 
102 X. Y. 66, 5 N. E. 797 ; Ingalls v. Bills, 9 Met 1, 43 Am. 
Dec. 346; Wilson v. Northern Pac. R. Co., 26 Minn. 278, 

3 X. W. 333, 37 Am. Eep. 410 \ Louisville etc. R. Co. v. 
Thompson, 107 Ind. 442, 8 X. E. 18, 9 X. E. 357, 57 Am. 
Eep. 120; Louisville etc. R. Co. v. Retter's Adm'r, 85 Ky. 
368, 3 S. W. 591 ; Southern R. Co. v. Watson, 110 Ga. 681, 
36 S. E. 209; Hegeman v. Western R. Co., 13 N. Y. 1; 
Caldwell v. New Jersey S. 8. Co., 47 X. Y. 282; New 
Jersey R. Co. v. Kennard, 21 Pa. St. 203; Reynolds v. 
Richmond etc. R. Co., 92 Va. 400, 23 S. E. 770; Southern 
Kansas R. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45 ; Smith 
v. St. Paul City R. Co., 32 Minn. 1, 18 X. W. 827, 50 
Am. Rep. 550 ; Treadwell v. Whittier, 80 Cal. 574, 22 Pac 
266, 13 Am. St. 175, 5 L. R. A. 498 ; Spellman v. Lincoln 
Rapid Transit Co., 36 Xeb. 890, 55 X. W. 270, 38 Am. 
St. 753, 20 L. E. A. 316; Denver Tramway Co, v, Reid, 

4 Colo. App. 53, 35 Pac. 269 ; Fox v. Philadelphia, 208 Pa. 
St 127, 57 Atl. 356, 65 L. E. A. 214. An injury resulting 
from an act in the operation of the train raises a presump- 
tion of negligence. The circumstances surrounding the acci- 
dent, considered in connection with the legal duty the de- 
fendant owed plaintiff, make out a case of negligence under 
the doctrine of res ipsa loquitur which, unless rebutted by 
defendant to the satisfaction of the jury, render it liable to 



80 WILLIAMS V. SPOKANE FALLS & N. R. CO. 

Citations of Counsel [39 Wash. 

plaintiff. 3 Thompson, Commentaries on the Law of Kegli- 
gence, §§ 2757-2761, 2830; 2 Shearman & Ked., Xegligence, 
§§ 516, 617; 6 Cyc. 628-632; Stokes v. Saltonstall, supra; 
Railroad Co. v. Pollard, 22 Wall. 341, 22 L. Ed. 877; 
Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 11 Sup. 
Ct. 859; 3 Hose's Xotes, U. S. Reports, pp. 812, 814; 
^Yhitney v. New York R. Co., 102 Fed. 850 ; Texas etc. R. 
Co. V. Gardner, lU Fed. 186; 9 Century Digest, cols. 1228- 
1234; Rintoul v. New York Cent. R. Co., 17 Fed. 905; 
Mullen V. St. John, 57 K Y. 567, 15 Am. Rep. 530; 
Houston V. Brush, 66 Vt. 331, 29 Atl. 380; Klepsch v. 
Donald, 8 Wash. 162, 35 Pac 621; Rose v. Stephens etc. 
Transp. Co., 11 Fed. 438; Peer v. Ryan, 54 Mich. 224, 
19 X. W. 961; St. Louis etc. R. Co. v. Hopkins, 54 Ark. 
209, 15 S. W. 610; Dixon v. PlunSy 98 Cal. 384, 33 Pac 
268, 35 Am. St 180; Morris v. Strobel & VVilken Co., 30 
N. Y. Supp. 571 ; Reynolds v. Van Beuren., 31 N. Y. Supp. 
827; Mulcaims v. Janesville, 67 Wis. 24, 29 N. W. 565. 
When a verdict which is clearly right is returned, error in 
giving or refusing instructions is harmless^ Carroll v. Cenr 
tralia Water Co., 5 Wash. 613, 32 Pac. 609, 33 Pac. 431 ; 
Davis V. Gilliam, 14 Wash. 206, 44 Pac 119; Hardin v. 
Mullen, 16 Wash. 647, 48 Pac. 349; Kirkland Land £ Imp. 
Co. V. Jones, 18 Wash. 407, 51 Pac 1043; Keating v. 
Pacific Steam Whaling Co., 21 Wash. 415, 58 Pac 224; 
Gray v Washington Water Power Co., 30 Wash. 665, 71 
Pac. 206; Goldthorpe v. Clark-Nickerson Lumber Co., 81 
Wash. 467, 71 Pac. 1091; Chicago etc. R. Co. v. Ross, 
112 U. S. 377, 6 Sup. Ct. 184; Pierce v. Clavin, 82 Fed. 
550; St. Louis etc. R. Co. v. O'Loughlin, 49 Fed. 440 J 
Choctaw etc. R. Co. v. Holloway, 114 Fed. 458; Id., 191 
U. S. 334, 24 Sup. Ct 102; Portland Gold Min. Co. v. 
Flaherty, 111 Fed. 312 ; Johnson v. Northern Pac. R. Co., 
1 X. D. 354, 48 X. W. 227; New York etc. R. Co. v. 
O'Leary, 93 Fed. 737 ; Mexican Cent. R. Co. v. Lauricella, 
87 Tex. 277, 28 S. W. 277, 47 Am. St 103; Houston Elec. 



WILLIAMS V. SPOKANE FALLS & N. R. CO. 81 

May 1905] Opinion Per Dunrab, J. 

8L R. Co. V. Elvis, 31 Tex. Civ. App. 280, 72 S. W. 216; 
Chicago etc. R. Co. v. Dickson, 63 111. 151, 14 Am. Eep. 
114; Chicago etc. R. Co. v. Murphy, 198 111. 462, 64 N. 
E. 1011 ; Beardstovm v. Clark, 104 111. App. 568 ; Beard 
V. Skeldon, 113 111. 584; Richmond R. & Elec. Co. v. 
Garthright, 92 Va. 627, 24 S. E. 267, 53 Am. St. 839, 
32 L. R. A. 220; Atchinson etc. R. Co. v. Miller, 39 Kan, 
419, 18 Pac 486; Beauvais v. St. Louis, 169 Mo. 500, 69 
S. W. 1043; Zellars v. Missouri Water & Light Co., 92 
Mo. App. 107. 

Dunbar, J. — ^Appellant was a railway postal clerk in the 
service of the United States. On August 15, 1903, he was 
one of the clerks in charge of a postal car attached to a 
train of the appellant, running between Spokane and North- 
port. The car on which he was occupied was, pursuant to 
the usual custom, detached from the train at the latter point, 
and set in on a side track, to be returned to Spokane on the 
day following. Northport is a terminal point, and trains 
are made up at that 'point for other destinations. The sid- 
ing upon which this postal car was placed was three hun- 
dred feet in length, and an even grade. A switch engine, 
engaged in making up a passenger train, entered upon this 
track with a baggage car and two coaches. For some cause, 
unknown and unexplained by , the testimony, the coupler 
which connected the bagagge car with the tender of the 
locomotive parted, and the three cars ran along the siding, 
and collided with the postal car, which contained the re- 
spondent^ injuring him most seriously. This action was 
brought to recover damages for the injuries so sustained, and 
resulted in a verdict in respondent's favor. Motion for new 
trial was duly entered and overruled, and judgment rendered 
upon the verdict, from which judgment this appeal is taken. 

It is conceded that the respondent was performing his 
duty on the car, and it is also conceded that the rules of 

6—89 WASH. 



82 WILLIAMS V. SPOKANE FALLS & N. R. CO. 

Opinion Per Dunbab, J. [39 Wash. 

law applying to passengers on a railroad car apply to hinu 
At the conclusion of tlie testimony for both respondent and 
appellant^ the appellant requested the court to charge the 
jury to find for the defendant. This request was overruled, 
and upon the action of the court in this respect is based 
the first assignment of error, the contention being that there 
was no proof that there was any negligence on the part of 
the appellant; that there is no allegation that there was any 
defect in the construction of the cars, or in their equipment, 
or that they were in a defective or unsafe condition in 
any respect at the time of the happening of the accident; 
and that no legal presumption of negligence arose casting 
upon appellant the burden of disproving it 

The particular negligence alleged is that, while respondent 
was in the discharge of his duties in a postal car, on a siding 
at Northport, the appellant's servants and employees negli- 
gently ran and propelled against said mail car other cars, 
by means of a locomotive operated by it, and said mail car 
was struck by said cars, propelled with great force and 
violence, pushing it along for a distance^ and derailing it, 
thereby throwing respondent down. The answer denied any 
negligence, and it is contended that there was no negligence 
shown. Hawkins v. Front St. Cable R. Co., 3 Wash. 592, 
28 Pac. 1021, 28 Am. St. 72, 16 L. E. A. 808 ; and Alhn 
V. Northern Pac. R. Co., 35 Wash. 221, 77 Pajc. 204, 66 L. 
K. A. 804, are relied upon to sustain the appellant's con- 
tention. 

In Hawkins v. Front St. Cable R. Co., supra, this court 
held that the following instruction, "It is the law that where 
a passenger being carried on a train is injured without fault 
of his own, there is legal presumption of negligence^ casting 
upon the carrier the burden of disproving it," constituted 
reversible error as being too broad a statement of the re- 
sponsibility of the carrier. There, it will be observed, the 
instruction overruled had no limitations whatever, and, under 
that instruction, if the passenger had been injured by some 



WILLIAMS V. SPOKANE FALLS ft N. R. CO. 83 

May 1905] Opinion Per Duitbab, J. 

unavoidable accident disconnected entirely from the railroad 
company, such as an injury resulting from the discharge of 
a firearm by some one in the car, or through the window 
by some one outside of the car, the company would have 
been held responsible. So that it is not enough that the 
passenger is injured witl^out fault of his own, but the in- 
jury must be connected in some way with the operation of 
the road; and, when the injury is so connected, we think, 
under the overwhelming weight of authority, that a prima 
facie case of negligencQ is made out by the plaintiff, and 
that the duty devolves upon the company to establish a 
want of negligence on its part. And the cases cited by 
this court in that case show that such was the view that 
the court took of the law. 

There is nothing in the case of Allen v. Northern Pac. 
It. Co., supra, to sustain appellant's contention. Mr. Thomp- 
son, in his Conmientaries on the Law of Negligence, Vol. 
3, § 2754, very happily expresses the distinction which we 
have sought to make. The section is as follows : 

"In every action by a passenger against a carrier to re- 
cover damages predicated upon the negligence or misconduct 
of the latter, the burden of proof, in the first instance, is, 
of course^ upon the plaintiff to connect the defendant in 
some way with the injury for which he claims damages. 
But when the plaintiff has sustained and discharged this 
burden of proof by showing that the injury arose in conse- 
quence of the failure^ in some respect or other, of the car- 
rier's means of transportation, or the conduct of the carrier's 
scrv'^ants, then, in conformity with the maxim res ipsa loquitur, 
a presumption arises of negligence on the part of the carrier 
or his servants, which, unless rebutted by him to the sat- 
isfaction of the jury, will authorize a verdict and judgment 
against him for the resulting damages. Stated somewhat 
differently, the general rule may be said to be that where 
an injury happens to the passenger in consequence of the 
breaking or failure of the vehicle, roadway, or other appli- 
ance owned or controlled by the carrier, and used by him 
in making the transit^ or in consequence of the act, omis- 



84 WILLIAMS V. SPOKANE FALLS i N. R. CO. 

Opinion Per Dunbab, J. [39 Wash. 

sion or mistake of his servants, — ^the person entitled to sue 
for the injury makes out a prima facie case for damages 
against the carrier, by proving the contract of carriage, that 
the accident happened in consequence of such breaking or 
failure, or such act, omission or mistake of his servants, and 
that, in consequence of the accident, the plaintiff sustained 
damage." 

And in § 2756, showing that the presumption arises not from 
the happening of the accident, but from a consideration of 
tlio cause of the accident, it is further said : 

"It has been pointed out by an able judge that the pre- 
sumption which arises in these cases does not arise from tlie 
mere fact of the injury, but from a consideration of the cause 
of the injury. Thus, it was said by Ruggles, J. : ^A pasr 
senger's leg is broken while on his passage in the railroad 
car. This mere fact is no evidence of negligence on the 
part of the carrier, imtil something further be shown. If 
the witness who swears to the injury testifies also that it 
was caused by a crash in a collision with another train of 
cars belonging to the same carriers, the presumption of negli- 
gence immediately arises,^ — ^not, however, from the fact that 
the leg was broken, but from the circumstances attending 
the fact.' " 

And a wilderness of cases is cited to sustain the announce- 
ment of the text. The cases on this subject are collated 
in the Century Digest, Vol. 9, commencing on page 1235, 
and the doctrine is almost universally announced that the 
fact that an injury results from a railroad collision without 
any fault of the passenger is prima facie evidence of care- 
lessness, n^ligence, or want of skill on the part of the 
company, and the burden is upon it to prove that the acci- 
dent was not occasioned by the fault of its agents. Goble 
V. Delaware etc. R. Co., Fed. Cas. Xo. 5488a; Smith v. 
St. Paul City R. Co., 32 Minn. 1, 18 N. W. 827, 50 Am. 
Rep. 550; New Orleans etc. R. Co. v. Allbritton, 38 Miss. 
242, 75 Am. Dec. 98; Chicago City R. Co. v. Engel, 35 
III. App. 490; Central Pass R. Co. v. Bishop, 9 Ky. Law 
348 ; North Chicago St. R. Co. v. Cotton^ 140 111. 486, 29 



WILLIAMS V. SPOKANE FALLS & N. R. CO. 85 

May 1905] Opinion Per Dunbab, J. 

X. E. 899, and many other cases, too numerous to cite, the 
circumstances of which are parallel in principle with the 
circumstances in this case, support the law announced. This 
is also in accordance with a decision made by this court in 
Walker v. McNeill, 17 Wash. 582, 50 Pac. 518, where it 
was said: 

"Whenever a car or train leaves the track it proves that 
either the track or machinery or some portion thereof is 
not in a proper condition, or that the machinery is not 
properly operated/' 

And this is the just and equitable rule, for the cause of 
the accident is within the knowledge of the railroad com- 
pany, while it might be a difficult matter for the plaintiff 
to prove what the cause of the accident was. 

So far as the proof was concerned, we think, also, that 
there was ample proof to show negligence on the part of 
the appellant. There was testimony to the effect that this 
coupling had come apart several times before, and that it 
was within the knowledge of the appellant's servants that 
it was liable to come apart^ and having that knowledge, it 
had no right to throw off the safety chains simply for the 
purpose of expediting its business to the extent of imperiling 
the life of the respondent. This manner of switching could 
only be safely done and relied upon on the supposition that 
the coupling could be absolutely depended upon, and the 
removal of the safety appliance, under such circumstances, 
constituted negligence on the part of the company towards 
its passengers. We think the court committed no error in 
overruling the appellant's motion for an instruction to find 
a verdict for the defendant 

In consideration of the fact that the amount of the judg- 
ment is not called in question, the second, third and fourth 
assignments of error are immaterial. The contention that 
the court erred in permitting respondent's counsel to read 
from -law books, in the presence of the jury, in the course 



86 WILLIAMS V. SPOKANE FALLS ft N. R. CO. 

Opinion Per Dunbab, J. [39 Wash. 

of his argument^ was decided adversely to such contention 
in Gallagher v. Buckley, 31 Wash. 380, 72 Pac. 79. 
Among others, the court gave the following instruction: 

"Under the allegations of the complaint and the admis- 
sions of the answer, plaintiff, when upon a mail car of the 
defendant as a postal clerk in the employ of the United 
States and in the discharge of such duties as such clerk, 
was a passenger and entitled to the care and caution to 
preserve him from injury that defendant, under the law, 
owes to a passenger. That duty was to carry the plaintiff 
safely so far as human care and skill would enable it to 
be done. Out of regard for human life and for the purpose 
of securing the utmost vigilance by carriers in protecting 
those who have committed themselves to its hands, the law 
requires the carrier to exercise the highest degree of care^ 
prudence and caution in running and operating its cars, so 
as to prevent injury to its passengers. It is not sufficient 
that the carrier has employed the same character of appli- 
ances, has exercised the same degree of care in their in- 
spection, has taken the usual and ordinary precautions to 
avoid accidents, and that its trains were operated in the 
same manner as is customarily and ordinarily done by other 
carriers under like circumstances. The carrier is bound to 
use such quality of appliances and to exercise such care in 
the use of those appliances as human foresight would sug- 
gest as a measure to protect the passengers from harm, and 
the carrier cannot exonerate itself from exercising this ordi- 
nary vigilance for the safety of its passengers, which the 
law required by shoAving that other carriers have customarily 
and ordinarily done the same thing, unless the jury find 
from the evidence that this manner of doing the things was 
such as the highest degree of care, prudence and caution 
required so as to prevent injury to passengers.'' 

It is contended by the appellant that the first part of 
the instruction, viz., that it is the defendant's duty to carry 
the plaintiff safely so far as human care and skill would 
enable it to be done, is opposed to the doctrine laid down 
by this court in Johnson v. Seattle Elec. Co., 35 Wash. 
382, 77 Pac. 677, where it was held that an instruction 
to the effect that a corporation engaged in the transportation 



WILLIAMS V. SPOKANE FALLS ft N. R. CO. 87 

May 1905] Opinion Per Duitbab, J. 

of passengers is held by the law to the exercise of the highest 
degree of care in the equipment of its road and the manner 
of its operation — that a transportation company is not an 
insurer of the lives or limbs of its passengers, but the law 
called upon it to do whatever can be done to insure their 
protection while they are being transported — stated the law 
too broadly, this court saying that there are many things 
that a carrier could do which would conduce to the safety 
of its passengers^ which it is not required to do simply 
because the practical prosecution of its business will not 
permit of it. It was, however, evidently not the intention 
of the court in that case to overrule the law announced in 
the previous ca^e of Northern Pac. B. Co. v. Hess,, 2 Wash. 
383, 26 Pac 866, where it was said: 

"Public policy and safety require that they [the carriers] 
be held to the greatest care and diligence in order that the 
personal safety of passengers be not left to chance or the 
negligence of careless agents; that, although the carrier does 
not warrant the safety of passengers against all events, yet 
his undertaking and liability as to thetm go to the extent 
that he, or his agents where he acts by agents, shall, so 
far as human care and foresight cai> go^ transport them 
safely, and observe the utmost caution charaoteristie of care- 
ful, prudent men ;" 

and in Clukey v. Seattle Elec. Co., 27 Wash. 70, 67 Pac. 
379, where the court sustained the following instruction: 

"Common carriers in the operation and running of thi^ir 
cars and especially common carriers such as this owe the 
duty to passengers whom they carry to use the highest de- 
gree of skill, care and prudence in the running and in the 
operating of those cars, so as to prevent injuries to those 
passengers." 

For these cases were discriminated in the Johnson case, the 
court holding that the expression that "the law calls upon 
it to do whatever can be done to insure their protection," 
was stronger than the expression used in the former cases. 
The case of Cogswell v. West Street etc, Elec. R. Co., 5 



88 WILLIAMS V. SPOKANE FALLS ft N. R. CO. 

Opinion Per Dunbas, J. [39 Wasli. 

Wash. 46, 31 Pac. 411, was not called to the attention of 
the court in the Johnson case, that case having decided that 
it was the duty of the company to exercise the highest de- 
gree of care in the transportation of passengers, the court 
saying : "It has long been the rule that when carriers under- 
take to convey persons by the powerful and dangerous agency 
of steam, public policy and safety require that they be held 
to the greatest possible care and diligence," citing Phila- 
delphia etc. R. Co. V. Derby, 14 How. 468, 14 L. Ed. 502 ; 
Steamboat New World v. King, 16 How. 469, 14 L. Ed. 
1019 ; and Pennsylvania Co. v. Boy, 102 U. S. 451, 26 L. 
Ed. 141. Neither was there cited to the court the case of 
Seai^s V. Seattle Elec. St. B. Co., 6 Wash. 227, 33 Pae. 
389, 1081, or the court might have thought itself justified 
in holding that the words "but the law calls upon it to do 
whatever can be done" meant only whatever could be done in 
the pnident operation of the road. In the Sears case, at 
page 235, it is said : 

"It is contended that the court erred in charging the jury 
that the defendant was bound to the exercise of the hi^est 
degree of care, prudence and caution in the running and 
operating of its cars, so as to prevent injury to its pas- 
sengers. And it is claimed by the appellant that this in- 
struction, in effect, informed the juiy that the appellant 
was an insurer of the lives and limbs of its passengers, and 
would be responsible for an injury to one of its passengers, 
even though it had used all the care and prudence which 
it was possible to use under the circumstances. But we do 
not think that the instruction, especially when applied to 
the facts and circumstances of the case, is fairly susceptible 
of thQ construction placed upon it by counsel 'for thfe ap- 
pellant. If the appellant used all the care and prudence 
which it was {X)ssible to use under the circumstances, then, 
in the language of the court, it used the highest degree of 
care, prudence, and caution. The highest degree of care, 
prudence, and caution in running and operating street cars 
so as to prevent injury to passengers, cannot be said to 
mean such a degree of care as will absolutely preveoit in- 



WILLIAMS V. SPOKANE FALLS ft N. R. CO. 89 

May 1905] Opinion Per Dunbar, J. 

jury, or such care as is inconsistent with that mode of con- 
veyance, but means simply the highest degree of practicable 
care and prudetioe in conducting that particular business." 

The court, in the case of Pennsylvania Co, v. Roy, 102 
U. S. 451, 26 L. Ed. 141, cited by this court in Cogswell 
V. West Street etc. Elec. R. Co., supra, in commenting on this 
questions^ says: 

"The court only applied to a new state of facts, principles 
very generally recognized as fundamental in the law of pas- 
senger carriers. Those thus engaged are under an obliga- 
tion, arising out of the nature of their employment, and, on 
grounds of public policy, vigorously enforced, to provide 
for the safety of passengers whom they have assumed, for 
hire, to carry from one plaoa to another. In Philadelphia 
& Reading Railroad Co. v. Derby (14 How. 648), it was 
said that when carriers undertake to convey persons by the 
powerful and dangerous agency of steam, public policy and 
safety require that they be held to the greatest possible care 
and diligence, — that the personal safety of passengers should 
not be left to the sport of chance, or the negligence of care- 
less agents. This doctrine was expressly affirmed in Bteawr 
boat New World v. King, 16 Id. 469." 

See, also, Stokes v. Saltonstall, 13 Pet. 181, and Railroad Co. 
V. Pollard, 22 Wall. 241. 

In fact, this is almost tlie universal authority. The expres- 
sions used by the courts — as far as human care and foresight 
can go, he must exercise the greatest possible care and dili- 
gence — extraordinary vigilance, aided by the highest skill — 
greatest degree of care, skill, and foresight — utmost skill 
and foresight — extraordinary diligence and foresight — 
utmost care and diligence in order to prevent injuries which 
human care and foresight can guard against — and words of 
similar import, all of them mean in effect the same as the 
language employed by the court in this case, viz., that the 
duty was to carry the plaintiff safely so far as human care 
and skill would enable it to be done. If it is the duty of 
the carrier to exercise the highest degree of care and skill, it 



90 WILLIAMS V. SPOKANE FALLS ft N. R. CO. 

Opinion Per Duivbab, J. [39 Wash. 

follows that the latter part of the instruction complained of 
is correct) for the highest degree of care and skill is the 
highest degree of t^are and skill which the circumstances 
surrounding the operation of the business will warranty re- 
gardless of the amoimt of care and skill that is exercised 
by other carriers. And the carrier cannot escape the re- 
sponsibilities for the violation of a duty which the law im- 
poses upon him by pleading the violation of that duty by 
other carriers. If the custom of railroad companies was to 
be accepted as the measure of care^ then there w\>uld be no 
stimulus to improve, each carrier relying, not upon its own 
exertions to exercise extraordinary care, but upon the custom 
of other carriers. In Union Pac. R, Co. v. Hand, 7 Kan. 
380, it is pertinently said by the court: 

"At the request of the plaintiff below, the court instructed 
the jury that, 'if the defendant, could have prevented the 
accident by tJie utmost human sagacity or foresight, with 
respect to their track, then the defendant is liable.' This 
is established law. The defendant sought to have it ex- 
plained to the jury by requesting the court to tell them *that 
the utmost human sagacity required of the defendant did 
not require of the defendant to taktf such extraordinary 
measures in constructing, operating, and maintaining its 
railroad as are not and have not been in use in the con- 
structing, operating, or maintaining of railroads.' This 
the court refused to give, and its refusal is assigned as error, 
and we are asked to correct it We know of no reason pe- 
culiar to this State why human life and safety are not as 
valuable here as elsewhere ; at any rate, it is not the province 
of courts to cheapen it, by constniing away established prin- 
ciples, laid do'svn to make life secure." 

The same principle was announced in Carlson v. WiUceson 
Coal (£' CoJce Co., 19 Wash. 473, 53 Pac. 725. 

Error is based upon the refusal of the court to give several 
instructions asked by the appellant, but the most of them 
are erroneous, if the instructions which the court gave are 



May 1905] 



HULBT V. ACHEY. 
Syllabus. 



91 



correct, and inaBmuch as the court gave the following in- 
struction : 

"The plaintiff brings this action against defendant to re- 
cover damages for injuries which he claims he sustained by 
reason of the negligence of the defendant. The burden of 
proving negligence rests on the party alleging it, and where 
a party allies negligence on the paxt of another as a cause 
of action he must prove the negligence by a preponderance 
of evidence, as verdicts must stand upon evidence and are 
not permitted to rest upon mere conjecture, however plaus- 
ible. There is no presumption that because the plaintiff was 
injured the defendant was negligent ; therefore^ in this case, 
if the jury finds that the weight of evidence is in favor of 
the defendant, or that it is equally balanced, theU' the plain- 
tiff cannot recover and your verdict should be for the de- 
fendant," 

it was not necessary to give the instructions asked for by 
the appellant to place all the questions of law involved in 
the case fairly before the jury. 

No error appearing in any respect^ the judgment is 
affirmed. 

Mount, C. J., Fuxlerton^ and IIadley, JJ., concur. 

RuDKiN, Root, and Ckow, JJ., took no part. 



(No. 5512. Decided May 23, 1906.) 

William Hulet, Appellant, v. Walter Ac hey, Jr., et al., 

Respondents} 

Sales — Standing Timber — Rescission — Fraud — False Repre- 
sentations AS TO Quality — Inspection by Vendee. A sale of stand- 
ing timber and sawlogs cannot be rescinded by the vendee for false 
representations of the vendor as to quality, where the vendee had 
lived for a long time on the adjoining land, had twice gone over 
the land with a view of purchasing, and no claim is made that 
opportunity to make examination was not available. 



89 


m 


m 




IST 


"^ 


1)40 


leil 


30 


91 


d41 


86 


^41 


218 


39 


91' 


42 


516 



I Reported in 80 Pac. 1105. 



92 HULBT V. ACHEY. 

Opinion Per Dunbab, J. [39 Wash. 

Same — ^Wabbantt as to Number of Loos — Breach — ^Rescission — 
Damages. It is not ground for rescinding a contract for the pur- 
chase of standing timber that there was a breach of a written war- 
ranty as to the number of sawlogs on the land, the remedy being 
by an action at law for damages. 

Appeal from a judgment of Hie superior court for Che- 
halis county, Rice, J., entered August 8, 1904, upon the 
findings of the court and the advisory verdict of a jury, 
dismissing on the merits an action for the rescission of a 
sale of timber. AflBrmed. 

/. C. Cross, for appellant, contended that the vendee has 
a right to rely upon representations, although he makes a 
partial examination and has opportunity to investigate. 
Turner v. Iloupi, 53 N. J. Eq. 526, 33 Atl. 28 ; Redgrave 
V, Hurd, 20 Ch. D. 1 ; Bishop, Non-Contract Law, § 337 ; 
Webb's Pollock on Torts (Am. ed.), 379; Albany City Sav. 
Inst. V. Burdickj 87 N. Y. 40. A mutual mistake as to 
quantity would entitle the vendee to a rescission. Clark, 
Contracts (1st ed.), 301; Benjamin, Sales (4th Am. ed.), 
§ 50a. 

E, E. Shields, for respondents. 

DuNBAB, J. — This is an action by appellant, plaintiff and 
vendee, to rescind a contract for the purchase of timber 
and sawlogs, upon the ground of fraud and misrepresenta- 
tions as to the character and quality of the logs, an4 al^ 
because of a shortage in the number of logs stipulated for 
in the agreement. The court called a jury to determine 
issues of fact, and the jury found a shortage in the logs 
stipulated to be furnished by the respondents, and found 
that the plaintiff was induced to enter into the contract ad 
a result of misrepresentations, knowingly made by defend- 
ants to plaintiff, as to the quantity and quality of the logs 
upon the lands. They also found specially that the plain- 
tiff had the opj^ortunity to examine the claim in question 
before he entered into the contract to purchase the same, 



HULET V. ACHEY. 93 

May 1905] Opinion Per Dunbab, J. 

and that the only thing that prevented him from making 
such an examination was his confidence in the representa- 
tions of the defendants; but that it was within the power 
of the plaintiff to ascertain the correctness of such repre- 
sentations. Upon these findings, the court, correctly regard- 
ing the findings of the jury as advisory in an equity action, 
decided that, inasmuch as the plaintiff had an opportunity 
to ascertain the number and condition of the logs notwith- 
standing the defendants' misrepresentations, the plaintiff was 
not entitled to rescission, under the established law of this 
state, and that he was asking the court to do what he ought 
to have done himself before he entered into the contract; 
and judgment was entered in favor of the defendants. 

It was decided by this court, in Washington Central Imp, 
Co. V. Newlands, 11 Wash. 212, 39 Pac. 366, that one who 
has the means of knowledge before him, and who refuses or 
neglects to avail himself thereof, will not be heard to assert 
that he was deceived or defrauded. In that case it was 
alleged that the vendor had made representations that were 
false and fraudulent, which representations led to the pur- 
chase of the land in question. The court, in discussing the 
case, said: 

"Conceding that these representations were false, and con- 
ceding that the purchaser relied upon them, there is not yet 
enough shown, it seems to us, in this answer to give the 
defendant relief. There is no fiduciary relation between the 
seller and the buyer alleged. It is not alleged that the buyer 
was in such a position that he was unable to make an in- 
vestigation concerning the truth or falsity of these alleged 
representations. So far as the allegations of the answer are 
concerned, there is nothing to show that the land was not 
at hand when this contract was made, and that it could not, 
by the use of ordinary prudence, have been investigated by 
the purchaser; and in cases of this kind, it seems to us that 
parties must exercise ordinary business sense^ and the fac- 
ulties which are given to them for the purpose of transacting 
business; and that they cannot call upon the law to stand 
in loco parentis to them in the ordinary transactions of busi- 



94 HULBT V. ACHEY. 

Opinion Per Dunbab, J. [39 Wash. 

ness and their ordinary dealings with their fellow men. 
. . . If people having eyes refuse to open them and look, 
and having understanding refuse to exercise it, they must not 
complain, when they accept and act upon the representa- 
tions of other people, if their venture does not prove suc- 
oassful. Written contracts would become too unstable if 
courts were to annul them on representation^ of this kind.*' 

And this doctrine Jias beei; followed ii\ an unbroken line of 
authority. Sees Walsh v. Bushell, 26 Wash. 676, 67 Pac. 
216 ; Griifith v. Strand, 19 Wash. 686, 54 Pac 613 ; Sherman 
V. Sweeny, 29 Wash. 321, 69 Pac. 1117. 

What was said in the case just quoted is particularly ap- 
plicable to the case at bar. Here the appellant had lived 
for a long time adjoining the land upon which were the logs 
and timber purchased. He had, at least twice, gone on to 
the premises for the purpose of viewing the logs and timber, 
and presumably made such examination as was satisfactory 
to him. At all events, there is no claim that the examina- 
tion which was afterwards made was not available to him at 
any time before he purchased^ and, under the rule announced 
above, he will not be heard to say that the contract which he 
entered into was not his contract. 

In this case, however, the following warranty appears in 
the contract, which was reduced to writing: "The said 
parties of the first part hereby covenanting and agreeing that 
the sawlogs are not less than four hundred in number," sit- 
uate and being on the land described therein. Qn this ques- 
tion, as to the number of logs actually on the land described, 
there is a plain conflict in the testimony ; but, whatever may 
be the appellant's rights in an action for damages for viola- 
tion of the contract as to the failure to furnish the amount 
of logs stipulated for, he cannot avoid the whole contract 
in an action for rescission, his remedy being, if he has any, 
purely an action for damages in a law court. It might be 
that, even though it were found — and this is a question upon 
which we do not now pass — ^that there was a shortage in the 



RITCHIE V. STATE. 95 

May 1905] Syllabus. 

number of logs, the respondents would supply the shortage 
within the time provided in the contract, and there would 
be no damages suffered by the appellant. In any event, these 
are questions to be determined, if determined at all, in another 
action. 

The judgment is affirmed. 

Mount, C. J., Crow, Fullebton, Hadley, Eudkin, and 
Root, J J., concur. 



(No. 564t. Decided May 23. 1905.) 



W. A. Ritchie, Appellant, v. The State of Washington, 

Respondent} 

States — Ck)NTBACTs — ^Employment of Abchitect tor State Capi- 
tol Annex — Not in Wbiting — State Capitol Commission — Powebs. 
The employment of a superyising architect for the erection of the 
capitol annex is not required to be by written contract; since Laws 
1893, p. 462, § 4, providing that all contracts made with the board of 
state capitol commissioners shall be in writing, indorsed "approved" 
by a majority of the board, etc., applies only to contracts for con- 
struction and material, and not to an agreement with the architect 
to be selected and employed under § 6 of the act, which pro- 
vides that his compensation is to be fixed by, and that he is re- 
movable at the pleasure of, the board, the law further requiring the 
architect to give bond for the faithful performance of his duties, 
while § 7 requires contractors to give bond for the faithful perform- 
ance of their contracts. 

Same — Extra Compensation — ^Modification of Contract — Clause 
Requiring Written Agreement. A written contract whereby the 
state capitol commission employed an architect for the erection of 
the capitol annex, which provides that the architect shall not be 
entitled to any extra compensation unless previously agreed upon in 
writing, does not preclude the contracting parties from thereafter 
modifying the contract or making a further contract for extra com- 
pensation without a writing; but the terms of the written contract 
may be considered in determining the fact of additional employment. 

Appeal from a judgment of the superior court for Thurs- 
ton, county, Linn, J., entered December 29, 1904, upon sua- 

1 Reported In 81 Pac. 79. 



96 RITCHIE V. STATE. 

Opinion Per Rudkin, J. [39 Wash. 

taining a demurrer to the complaint, dismissing an action 
on contract. Reversed. 

Vance & Mitchell, for appellant. 

The Attorney General and A. J. FdUcnor, for respondent 

Rudkin, J. — The complaint in this case contains four 
causes of action, but only two of these are before us on 
this appeal. The third cause of action is to recover the sura 
of $1,560 for services performed by the plaintiff, at the 
special instance and request of the defendant, in preparing 
and furnishing written plans^ specifications, schedule of 
quantities, and details of furniture, furnishings, etc., for the 
senate chamber and hall of the house of representatives in 
the annex of the capitol building. The fourth cause of action 
is to recover the sum of $1,400 for services performed by 
the plaintiff, at the special instance and request of the de- 
fendant, in preparing plans, specifications, and detail draw- 
ings of structural ironwork (except roof trusses), including 
floor beam construction, cast iron columns, concrete and ex- 
panded metal fireproof floor construction and its supports^ 
for the state capitol annex, in lieu of the hollow tile fire- 
proof construction called for in the original plans and con- 
tract 

To both the third and fourth causes of action, the defend- 
ant interposed the defense that no copy of any contract in 
writing respecting said plans, specifications, details and 
schedules, or said services, was ever made out and certified 
by the secretary of the state capitol commission, endorsed 
"approved" or otherwise, with the date of approval, or de- 
livered to said plaintiff, and no written contract between the 
plaintiff and the defendant for said plans, specifications, 
details and schedules, or for said services, was ever approved 
by a majority of said board, or recorded in a book kept for 
that purpose. To the fourth cause of action the additional 
defense was interposed, that on the 5th day of April, 1901, 



RITCHIE V. STATE. 97 

May 1905] Opinion Per Rudkin, J. 

the plaintiff and the defendant entered into a written eon)- 
tract, whereby the defendant employed the plaintiff as super- 
vising architect to prepare and furnish plans, specifications, 
drawings and details for the repairs, alterations, etc., in the 
state capitol building; that said contract contained the fol- 
lowing provision, among others: 

^*Said second party in consideration of the performance 
of all the conditions, agreements and stipulations herein con- 
tained to be performed by said first party, his subordinates 
and assistants, agrees to pay said first party as full compen- 
sation, an amount equal to five per cent of the actual cost of 
such alterations, repairs, and additions, to be paid as follows, 
ta wit: 21/^ per cent wben contracts are entered into for the 
making and construction of such repairs, alterations and addi- 
tions, within the limit of the funds available for such pur- 
pose, and the remaining 2^/^ to be paid in installments as 
follows : 2^ per cent of the amount of the estimate paid to 
contractor for work done and materials furnished for the pre- 
ceding month ; and the balance at the time of the completion 
of said alterations, repairs and additions, and the acceptance 
oi the same by said commission. But in no event shall the 
total amount paid to said architect exceed the sum of five 
per cent of the actual costs of said alterations, repairs and 
additions, it being expressly understood that the said first 
party shall not be entitled to any extra compensation on any 
acoounit whatever, unless previously agreed upon in writing ;" 

that the services mentioned in the fourth cause of action 
were for changes and alterations made in the original plans 
for the building, and the same were so made without cost 
to the defendant; that no contract in writing, or otherwise, 
was entered into between the plaintiff and the defendant 
respecting such alterations, or respecting the furnishing of 
plans, specifications and detail drawings, excepting the writ- 
ten contract above set forth, which is made a part of the 
answer. 

The reply admitted that there was no contract in writ- 
ing between the plaintiff and the defendant for the services 

7—89 WASH. 



98 RITCHIE V. STATE. 

Opinion Per Rudkin, J. [39 Wash. 

mentioned in the third and fourth causes of action, and ad- 
mitted the execution of the written contract referred to in, 
and made a part of the answer. By reason of these admis- 
sions in the reply, the court below granted a motion for 
judgment on the pleadings, and from the order of dismissal, 
this appeal is taken. 

The respondent relies on the following provision in sec- 
tion 4 of the act of March 21, 1893, to sustain tiie judg- 
ment in its favor : 

'^AU contracts made with said board and all bonds re- 
quired by said board shall be regularly passed upon by the 
board in session and if adopted and approved by a majority 
of said board shall be recorded in a book kept for that 
purpose, and a copy of such contract shall be made out and 
certified by the secretary indorsed 'approved,' with the date 
of approval, and delivered to the other party to the con- 
tract. Until such delivery no contract shall be valid or 
binding on either party." Laws 1893, p. 462, § 4. 

Must the employment of an architect for the building 
be by written contract in order to be valid under the above 
provision? Said section 4 also provides for the appoint- 
ment of a secretary. His compensation is fixed by the board 
at not to exceed $125 per month for the time actually em- 
ployed, and he is removable at the pleasure of the board. 
Section 6 provides for the employment of an architect, and 
the manner of his selection. His compensation is fixed by 
the board, and he is removable at their pleasure. Section 
9 of the act provides for the appointment of a superin- 
tendent. His compensation is fixed by the board at not to 
exceed $8 per day, and he also is removable at pleasure. 
Section 7 of the act provides that, 

"No construction or material shall be furnished except 
pursuant to bids advertised for, as herein provided. All 
lettings of construction or material exceeding in amount the 
sum of five hundred dollars ($500) shall be advertised in 
two daily newspapers of general circulation, for not less than 
ten days. The bid of the lowest responsible bidder shall 



RITCHIE V. STATE. 99 

May 1905] Opinion Per Rudkin, J. 

be accepted, saving that the board shall have the right to 
reject all bids. The performance of every contract shall 
be secured by a bond to the State of Washington, in a sum 
not less than one quarter of the contract price, secured by 
two securities, qualifying in double the amount of the bond, 
each of whom shall be a bona fide resident of this state, said 
bond to be conditioned for the faithful performance of said 
contract, '' 

Section 14 of the act provides for the auditing of all claims, 
bills, and demands for work done, labor performed and 
material furnished. 

We fully agree with counsel for respondent that the powers 
of the state capitol commission are defined by the act crea- 
ting the board, and that the appellant cannot recover if that 
act requires his contract of employment to be in writing. 
We cannot agree, however, with the contention that the em- 
ployment of an architect comes within the provisions of the 
act requiring certain contracts to be in writing. We think 
the contracts for construction and material referred to in 
section 7 are the contracts, and the only contracts, which 
fall within the requirements of section 4. Said section 4 
refers to "all contracts made with said board and all bonds 
required by said board." The requirements of this section 
apply alike to the contract and the bond. The bond, re- 
ferred to is manifestly the bond given for the faithful per- 
formance of the contract. While the secretary and architect 
are required to give bonds, their bonds are conditioned for 
the faithful performance of their duties, and not for the 
faithful performance of any contract between them and the 
board. The secretary, the architect, and the superintendent 
are removable at the pleasure of the board, and such power 
of removal is in a measure inconsistent with any definite 
contract of employment. We think the object of the statute 
will be fully satisfied by limiting the requirements of sec- 
tion 4 to the contracts for construction and material referred 
to in section 7. To extend the requirements to all contracts 
of whatever kind would unduly hamper the board in the 



100 RITCHIE V. STATE. 

Opinion Per RxTDKiif, J. [39 WaslL 

discharge of their duties, and we do not think that such 
was the intention of the legislature. 

The other defense interposed may be valid, and it may 
not. It presents a question of fact, not of law. It is com- 
mon, in building contracts, to provide that no claim shall 
be made for extras unless ordered in writing. Such pro- 
visions are usually a limitation on the authority of architects, 
engineers, and other agents in charge of the work. They 
are intended for the protection of the employer, are valid, 
and should in all proper cases be enforced. But it must 
be remembered that a party cannot, by contract, limit his 
own power as to its modification, or as to the making of 
future contracts. Notwithstanding the parties in this case 
agreed that no charges for extra compensation should be 
made on any account whatever, unless previously agreed 
upon in writing, they nevertheless retained full power to 
modify this contract, or to make a further contract without 
a writing; and in this case it is for the court or jury to 
say, under all the circumstances, whether the services men- 
tioned in the fourth cause of action were performed under 
the written contract attached to the answer, or under some 
subsequent agreement, express or implied. Wilkens v, Wilk- 
erson (Tex. Civ. App.), 41 S. W. 178; Bartlett v. Stanch- 
field, 148 Mass. 394, 19 N. E. 549, 2 L. R. A. 625. In 
determining this question, they have a right to take into 
consideration the terms and provisions of the written contract 
between the parties. 

For the error in granting the motion for judgment on the 
pleadings, the judgment is reversed and a new trial ordered. 

Mount, C. J., !Fuli-erton, Hadlet, Crow, Dunbar, and 
Root, J J., concur. 



BENSON V. SPOKANE). JQl 

May 1905] Opinion Per Mount, C. J. 

(No. 6293. Decided May 23, 1906.) 

Haiv^s Benson et al.. Respondents, v. The City of Spokane, 

AppeUard} 

Municipal CobposaTions — ^Bbidges — ^Nbolioence — ^Defective Condi- 
tion — Duty of City — Instbuctionb. In an action for personal In- 
juries sustained through the defective condition of a bridge, an in- 
struction not technically accurate, declaring it to be the duty of 
the city to use reasonable care to keep its bridges in good, safe con- 
dition, and to the effect that it would be liable for failure to so keep 
them in such condition, is not prejudicial error when immediately 
followed by an instruction that the law did not require the city to 
keep its bridges absolutely safe, and correctly defining ordinary care 
and limiting the duty of the city to reasonable and ordinary care in 
guarding against accidents. 

Same — Pleading and Pboop — ^Unessential Details — ^Defect thh 
Pbimary Cause of the Accident — Instructions. In an action for 
personal injuries sustained by reason of a defect in a bridge, which 
caused the horse to tip over the buggy, the plaintiff is not required 
to prove the allegation that the horse stepped into the hole and then 
violently backed off; and it is proper to instruct that the defendant 
is liable if the horse shied at the hole without stepping into it pro- 
vided that the defect was such as to cause an ordinarily gentle horse 
to shy and the plaintiff was free from negligence; since proof of 
unimportant details explaining the result is not essential where the 
defect complained of is the primary cause of the accident. 

Appeal from a judgment of the superior court for Spo- 
kane county, Belt, J., entered Maxch 7, 1904, upon the 
verdict of a jury rendered in favor of the plaintiffs, in an 
action for personal injuries sustained by reason of a defect 
in a bridge. Affirmed. 

John P. Judson and A. H. Kenyon, for appellant. 
Horace Kimball and Miles Poindexter, for respondents. 

Mount, C. J. — ^Action for personal injuries. The plain- 
tiffs obtained a judgment in the court below, and defendant 
appeals. The respondent Mrs. Benson, while attempting to 
drive a horse and buggy upon a bridge maintained by the 

1 Reported in 80 Pac. 1106. 



1Q2 BENSON V. SPOKANE. 

Opinion Per Mount, C. J. [39 Wash- 

city of Spokane within its borders, was thrown from her 
buggy, and severely injured. The negligence complained 
of was, that the city had permitted the bridge to become 
and remain out of repair, so that the approach to the bridge 
contained a hole in the floor, eight or ten inches wide and 
four feet long; that, when she came up to the bridge, not 
knowing the condition thereof, and with nothing to put her 
on notice of the condition, her horse stepped into the hole, 
the buggy was thrown forward, then backward, and tipped 
to one side, so that she was thrown out upon the bridge- 
By the fall her right hip was broken and her right shoulder 
was dislocated. The bridge was in common use upon a pub- 
lic highway, and had remained in an unsafe condition for 
more than a week. The city had been notified of the con- 
dition several days prior to the accident. The case was tried 
to the court and a jury, and a verdict was returned for 
$3,000. 

The only errors alleged are based upon instructions given 
by the court, and instructions requested by appellant and 
refused by the court The court instructed the jury as 
follows : 

"I instruct you that the defendant ... is bound 
under the law to use all reasonable care and caution to keep 
its streets, sidewalks and bridges in safe condition for travel 
in the ordinary mode of travel, and that for failure to so 
keep its bridges^ streets and sidewalks in safe repair it is 
liable to one who suffers injury or damage by reason of 
their failure to keep the bridges, streets and sidewalks in 
reasonable repair ; provided, however, the injured party him- 
self has used all reasonable care and caution to prevent in- 
jury to himself. ... I instruct you if you believe 
from a preponderance of the evidence that the corporate 
authority of the city of Spokane did not use reasonable care 
and supervision over that portion of the street where the 
injury in question is alleged to have occurred, that is to 
say, the bridge over Crystal Springs Creek, to keep in good, 
safe condition, and by that means allowed it to become de- 
fective and unsafe, as allied in plaintiffs^ complaint, and 



BENSON V. SPOKANE. JQS 

May 1905] Opinion Per Mount, C. J. 

if the jury further believe from a preponderance of the evi- 
dence that the plaintiff, in attempting to drive over the 
bridge, by reason of such defect was injured and has sus- 
tained damage thereby as alleged in her complaint, and that 
at the time she was exercising reasonable care and caution 
to avoid such injury, that the defendant is liable and your 
verdict should be for the plaintiff." 

While these instructions may not be technically accurate 
in their wording, they convey the idea that it is the duty 
of the city to use reasonable care to keep its bridges in 
a reasonably safe condition for ordinary travel. The court 
said that it was the duty of the city to exercise reasonable 
care to keep its bridges in good, safe condition. If there 
ia any doubt that these instructions impose a greater duty 
upon the city than the law requires, that doubt is removed 
by other instructions immediately following, in whidi the 
court said: 

"Ordinary care as used in these instructions is that degree 
of care which an ordinarily careful and prudent person would 
or should exercise under like or similar circumstances. The 
law does not require that the streets and bridges of the city 
shall be kept absolutely safe, but only that reasonable care 
shall be exercised to keep them in a reasonably safe condi- 
tion. The city is not an insurer of safety. It does not 
undertake to warrant against accident and injuries. It is 
not bound to exercise extraordinary care, and if you believe 
from the evidence that this defendant did use ordinary 
care and reasonable care and diligence in guarding against 
the occurrence of accidents by reason of the condition of the 
bridge, but nevertheless the accident complained of occur- 
red, then your verdict must be for defendant." 

Taking all these instructions together, it is clear« that the 
duty of the city was properly defined to the jury. 

Hie court gave the following instruction : 

"I instruct you further, gentlemen, that if you believe 
that there was a hole in the bridge, and that the defendant 
knew, or ought to have known it was there, as I have instructed 
you, but that the horse did not step into the hole but instead 



104 L BENSON V. SPOKANB. 

Opinion Per Mount, 0. J. £89 Wash. 

shied at the hole, and backed away, cramping the buggy, 
thus throwing the plaintifE out^ and she was using due car© 
and caution to prevent injury to herself, then the defendant 
would be liable if plaintiff was injured ; provided, however, 
you further find that the hole in the bridge was such as 
was calculated to cause an ordinary horse to shy and be- 
come frightened. And it is for you to determine whether 
the hole in the bridge, if there was one there, was such an 
object as was calculated to cause horse© generally to shy and 
become frightened." 

The way the accident happened, as described in the claim 
filed with the city, the language of which claim is substantially 
copied in the complaint, is as follows: 

"The horse, hitched and attached to the buggy in which 
the said Karstean Benson was sitting, passed on said bridge;, 
drawing said buggy with him, and the said horse did step 
into the aforesaid hole in the planking of said bridge, which 
caused said horse to pitch forward, jerking said buggy with 
him, and said horse in endeavoring to extricate his foot from 
such hole in said bridge jerked violently backward, jerking 
said buggy with him and throwing said Karstean Benson 
violently out of said buggy, causing her to fall violently 
and with great force and shock on aaid bridge." 

There is substantial evidence in the record supporting the 
statements as alleged. But the theory of the defense was, 
that the horse came up to the hole in the bridge and stopped ; 
that thereupon the plaintiff, or her daughter who was riding 
in the buggy with her, attempted to force the horse over the 
hole by striking him with the lines, and that the horse re- 
fused to go, but backed away, turning the buggy down an 
embankment and throwing the plaintiff out. Appellant con- 
tends that the instniction last above quoted permits the plain- 
tiffs to recover, independently both of the cause of action 
stated in the claim filed with the city, and of the allegations 
of the complaint. But we think this contention is not well 
founded. If the primary cause of the injury was the de- 
fective and unsafe condition of the bridge, it makes no 
difference whether the horse stepped into the hole with one^ 



BENSON V. SPOKANE. 105 

May 1905] Opinion Per Mount, C. J. 

or with two, of his feet^ or waa thereby frightened and 
backed away, or whether he was frightened and backed away 
before he stepped into it at all. The hole, in any event, 
was the cause of the horse backing, and the result is the 
same to the respondent. It was no more necessary to prove 
that the horse actually put one foot into the hole than it 
was to prove that the horse first fell forward and then ran 
backwardsb None of these things were essential to state 
a cause of action. They served only to explain the result. 
These facts may vary in different caaee^ or the witnesses 
may vary as to these unimportant details in each case, while 
the cause and result still remain unchallenged. In Dur- 
ham V. Spokane, 27 Wash. 615, 68 Pac. 383, where this 
same question was raised, we said: 

". . • it can make no difference as to the city's lia- 
bility therefor whether the injured person stepped into an 
exiarting hble or a hole made by her at the time of the 
injury, or, if she did step into an existing hole, wh^her 
that particular hole existed for a long or for a short period 
of time, provided, of course^ she was not guilty of con- 
tributory negligence," 

The evidence offered by the appellant upon this point 
was material only as tending to show contributory negli- 
gence. If the horse saw the hole and stopped, and was 
urged to go and refused, these facts were material to show 
that the respondent knew, or should have known, of the 
danger, and therefore was guilty of negligence herself. But 
it was unimportant to contradict the fact that the horse 
stepped into the hole, because that fact itself was immaterial 
except as it was a part of the res gestae leading up to the 
result. 

With this view of the matter, it is unnecessary to discuss 
the instructions requested by the appellant and refused by 
the court, because the requested instructions were based 
upon the theory that the instruction above discussed was 
erroneous. Instructions requested bearing upon other que&- 



J 06 FL3MING V. WILSON. 

Opinion Per Curiam. [39 Wash. 

tiona were given, in substanoe^ by the court, and it is there- 
fore unnecessary to notice them. There are other errors 
assigned, but none of them are meritorious. The instruc- 
tions given by the court fairly and fully covered the law 
of the case. 

There is no error apparent in the record. The judg- 
ment is therefore affirmed. 

Dunbar, Hadley, and Fulleeton, JJ., concur. 
EuDKiN, Root, and Ceow, J J., took no part 



(No. 6239. Decided May 23. 1906.) 



T. W. Fleming, Respondent, v. L. G. Wilson et al.. 

Appellants} 

Trial — By Juby — Failing to Demand When Set fob Tbial — Dis- 
CBETiON. It is discretionary to award a Jury trial although the 
same was not demanded when the case was set for trial in the manner 
required by Laws 1903, p. 50, and error cannot be predicated thereon. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered December 23, 1903, upon tlie 
verdict of a jury rendered in favor of the plaintiflF. Af- 
firmed. 

James B, Murphy, for appellants. 
Smith & Cole, for respondent. 

Per Curiam. — The only question presented on this appeal 
is wiietlier the lower court may call a jury in a law case 
Avhere the parties have waived a jury under the provisions 
of the act of March 6, 1903, relating to jury trials. Laws 
1903, p. 50. This same question was presented to this 
court under substantially the same facts in Knapp v. Order 
of Pendo, 36 Wash. 601, 79 Pac. 209, where we aaid: 

"It is within tlic discretion of the trial court to permit 
a demand for a jury to be made after the case is called 

1 Reported in 80 Pac. 1104. 



HUMES V. HILLMAN. 107 

May 1905] Opinion Per Dunbar, J. 

to be set for trial, or to submit the issues of fact in a 
case to a jury of its own motion, and no error can be 
predicated upon its ruling in that regard." 

Under this rule, the judgment must be affirmed. It is 
so ordered. 



(No. 5682. Decided May 23, 1906.) 



Andrew Humes, Respondent, v. C. D. Hillman et al.. 

Appellants} 

Apfral and Esbob — ^Record — Statement op Facts — ^Motion to 
Strike — ^Affidatits. A motion to strike a statement of facts must 
be heard upon the record, and conflicting affidavits of the attorneys 
as to an extension of time for filing the statement wiU not be con- 
sidered by the supreme court. 

Appeal and EhtBOR — Statement of Facts — Time fob Settlement — 
EbETENsiON — Obal AGREEMENT. An oral agreement to enter into a 
stipulation to extend the time for filing a statement of facts cannot 
be considered, and will not prevent the striking of a statement not 
settled within the time prescribed by law. 

Appeal at^d Erbob — Record — Transcript — Failure to File in 
Time — Dismissal. Where the transcript is not filed within the time 
prescribed by law, without any sufficient excuse being made for 
such failure, nor at the time a motion for dismissal is made, the 
appeal will be dismissed. 

Motion to dismiss an appeal from a judgment of the su- 
perior court for King county, Morris, J., ent^^red January 
4, 1905. Granted. 

William C. Keith, for appellants. 
C. A. Reynolds, for respondent. 

Dunbak, J. — ^Respondent moves to strike from the record 
the statement of facts filed by appellants, and to dismiss 
the appeal from the judgment, entered herein by the su- 
perior court of King county, Washington, for the reason, 
that the statement of facts was not filed within thirty days 

1 Reported In 80 Pac. 1104. 



108 HUMBS V. HILLMAN. 

Opinion Per Dunbab, J. [39 Wash. 

of the date of the judgment ; that no extension for the filing 
of said statement was granted by order of courts upon notice 
to respondent or by stipulation ; and that the transcript was 
not filed or certified within ninety days from the serving 
and filing of the notice of appeal. 

The judgment was entered January 4, 1905; motion for 
new trial overruled January 31, 1905 ; statement of facts 
served April 7, 1905; statement of facts settled April 15, 
1905. Under Pierce's Code, § 679, it is evident that the 
statement of facts was not filed within the time prescribed 
by law, unless the time wa& enlarged by stipulation, or by 
order of court made on notice to the adverse party, and 
that the transcript waa not filed within the provisions of 
§ 1061, of Pierce's Code. 

There is no excuse offered in the record for the failure 
to settle the statement of facts within the time prescribed 
by the statute, excepting the claim that an oral stipulation 
was entered into between the attorneys for the respondent and 
appellants, whereby the time was to be extended. This 
is denied by the attorney for the respondent, and affidavits 
are presented by both the respondent and the appellants 
upon this proposition. This court has uniformly held that 
it is not within its province to decide between attorneys 
on questions of this kind, and the affidavits in this case, 
with criminating and recriminating accusations, exemplify 
the wisdom of the rule. There must be a record here upon 
which the court can act 

It is contended by the attorney for the appellants that, 
inasmuch as the counsel for respondent agreed to enter into 
a written stipulation, such agreement is equivalent to a 
written stipulation. But there seems to be no force in this 
contention. Even conceding, without deciding, that such an 
agreement had been made, the agreeonent to enter into a 
written stipulation was as much an oral agreement as any 
other oral agreement 

There having been no written stipulation, or order of the 



McAVOY V. JENNINGS. 109 

May 1905] Statement of Case. 

court on notice to the adverse pftrty, to extend the time for 
filing the statement of facts^ and no excuse being offered 
for a failure in that reepect^ the statement of facts will be 
stricken; and the transcript, not having been filed within 
the time prescribed by law, without any sufficient excuse 
for such failure, and not having been filed at the time this 
motion was made^ will also be stricken, and the cause dis- 
missed. 

Mount, C. J., Root, Hadley, Fullebton, Ceow, and 
RuDKiN, JJ., concur. 



(No. 6286. Decided May 2S, liX)6.) 

C. E. McAvoY, Respondent, v. I. H. Jennings, Appellant} 

Appeal xyo Esbor — ^Tbanscbipt — ^Time fob Filing — Dismissal. 
The filing of the transcript within ninety days is not jurisdictional, 
and an appeal will not be dismissed for failure to file the transcript 
within such time, when filed before the motion to dismiss was made. 

ASSIONMEXT FOB BENEFIT OF CbBDITOBS — GaBNISHMENT OF AS- 
SIGNEE — ^Answer — ^Motion fob Judgment — ^Amendment — Ck)NSENT of 
Cbeditob. Upon a motion for Judgment on the answer of a gar- 
nishee, which admitted that he held the property of the principal 
defendants as a trustee for the benefit of all the creditors under 
a written assignment, the answer, in the absence of demurrer or 
motion, should be treated as amended to allege that the assignment 
was made at the instance of the plaintiff, thereby precluding the 
plaintiff from attacking the assignment as fraudulent, and raising 
an issue of fact; hence Judgment on the pleadings against the gar- 
nishee is erroneous, notwithstanding a reply by the plaintiff denying 
the plaintifTs consent to the assignment. 

Appeal from a judgment of the superior court for King 
county, Albertflon, J., entered January 20, 1904, in favor 
of the plaintiflF against a garnishee!, upon motion for judg- 
ment on the pleadings. Reversed. 

Leopold M. Stem, for appellant. 
Roberta & Leehey, for respondent. 

1 Reported in 81 Pac. 77. 



110 McAVOY V. JENNINGS. 

Opinion Per Mount, C. J. [39 Wash, 

Mount, C. J.— On Noveanber 19, 1903, M. J. Harkins, 
L. W. Harkins, and E. E. Harkins, copartners under the 
firm name of the '^Harkins Company," executed the follow- 
ing agreement in writing: 

"Bill of Sale. 

"This Indenture, made this 19th day of Nov., 1903, 
by and between E. E. Harkins, L. W. Harkins and M. J. 
Harkins, of Seattle, Washington, doing business under the 
firm name and style of the Harkins Co., parties of the first 
part, and I. H. Jennings, of Seattle, Washington, party of 
the second part, 

"WITNESSETH: That, whereas, the parties of the first 
part have, for some time past, been carrying on a general 
grocery business at K'o. 1501, 14th Avenue^ in Seattle, 
Washington, and are owners of a general stock of groceries, 
fixtures, three horses, two wagons^ and a large number of 
book accounts, contracted in the course of said business, and 
also a leasehold interest in said premises; and whereas, tlie 
said parties of the first part^ in the conduct of said grocery 
business, have become indebted to various persons and firms, 
which persons and firms are enumerated in the list of the 
creditors hereto attached, and in the amounts set opposite 
tlieir respective names; and whereas, the said parties of 
the first part desire to pay each of said persons and firms 
mentioned in said list equably and ratably ; and whereas, 
the said party of the second part is willing to receive a 
bill of sale of the said stock of general merchandise, fix- 
tures, horses, wagons and harnesses, and an assignment of 
all book accounts and of the leasehold interest in and to 
the said premises, and is willing to sell all of said personal 
property of said leasehold interest, and to collect said book 
accounts ; and after deducting the expenses of administering 
this trust, to apply the balance to the proceeds arising from 
said sale and such collections, equably and ratably to the 
claims of all creditors mentioned in the list of creditors 
hereto attached; 

''Xow, know all men, by these presents, that the said 
parties of the first part, for and in consideration of the 
sum of one dollar in hand paid to the parties of the first 
part by the party of the second part, and other good and valu- 



McAVOY V. JENNINGS. m 

May 1905] Opinion Per Mount, C. J. 

able oonsiderationsj ta be paid as hereinafter specified, do 
hereby grant^ bargain, sell and convey and deliver unto the 
said party of the second part the entire stock of goods, 
wares, and merchandise, and all fixtures contained in the 
store building located at No. 1501, 14th Avenue, in Se- 
attle, Washington, together with the good will of said busi- 
ness, and also the right to immediate possession thereof. 
Parties of the first part also sell to the said party of the 
second part the said horses, wagons^ and harnesses, and 
hereby assign and transfer to said party of the second part 
all outstanding book accounts as the same appear upon the 
books of accounts kept by said parties of the first part; 
parties of the first part also assign and transfer all their 
right, title and interest in and to the lease upon said 
premises. 

"To have and to hold the said personal property above- 
mentioned, together with the book accounts and good will 
of said business, unto the said party of the second part, 
his heirs, executors, administrators and assigns, in trust 
for the uses and purposes hereinafter mentioned; that is 
to say, in trust to take immediate possession of all of said 
personal property, and to sell ihe same collectively or sep- 
arately at public or private sale, as he may deem best; 
and to collect, sell or compromise all of said outstanding 
book accoimts; and after deducting the expenses of admin- 
istering the said estate^ to apply the proceeds remaining, 
equably and ratably, among the creditors of the parties of 
the first part enumerated in the list of creditors hereto 
attached; provided, however, that each creditor, before be- 
ing entitled to receive his pro rata under the terms of this 
agreement, shall deliver to the party of the second part, a 
release of all claims against the said parties of the first part. 

"It is expressly agreed that this conveyance shall not be 
construed to be a deed of voluntary assignment under the 
laws of. the state of Washington. 

"In witness whereof, the said parties of the first part 
have hereunto set their hands and seals," etc. (Duly 
signed.) 

To this instrumient was attached a list of creditors for 
whose benefit the transfer was made. Immediately upon 
the execution of this agreement, Mr. Jennings took posses- 



112 McAVOY V. JENNINGS. 

Opinion Per Mount, C. J. [39 Wash. 

sion of all the property therein mentioned, and afterwards 
sold the tangible property, and proceeded with the collection 
of the book accounts. The American Savings Bank & Trust 
Company was one of the creditors named in the list at- 
tached to the instrument above copied. After the transfer 
to Jennings had been made, the bank assigned its claim to 
McAvoy, the respondent, who thereupon commenced an 
action in the superior court of King county to reduce the 
claim to judgment against the members of the Harkins Com- 
pany. In that action McAvoy caused Jennings to be sum- 
moned as a garnishee defendant. 

Jennings appeared in the garnishment proceedings and 
answered, denying that he was indebted to said copartner- 
ship, or any member thereof, and denying that he had any 
property in his possession or under his control belonging to 
defendants in the action; and, by way of further answer, 
he set forth the trust agreement above copied, and 'alleged 
that he had taken possession of all the property therein 
stated, and had converted the same into money, and that 
he had in his possession the sum of $854.02, which he was 
prepared to distribute pro rata among the creditors in ac- 
cordance with the said agreement. He also alleged that the 
total of the debts amounted to $3,200. 

The plaintiff in the garnishment proceedings, without 
moving against the answer of the garnishee, filed a reply 
denying all the allegations in the answer, and alleged that 
the agreement and transfer of the property therein described 
was fraudulent and void as to creditors, because it was not 
in compliance with the sales-in-bulk act, for the reason that 
the sale was without consideration and there was no affidavit 
of the vendors setting out the names of all the creditors 
and the amount due each. The reply also alleged that the 
transfer was made without the consent of all the creditors, 
and without the knowledge, consent, or ratification of the 
plaintiff, or his assignor. 

After this reply was filed, the plaintiff moved the court 



McAVOY V. JENNINGS. 113 

May 1905] Opinion Per Mount, C. J. 

for a judgment against the gami&hee upon his answer, and 
upon the ploadings in the case. The garnishee also moved 
for a discharge upon like grounds. The court, upon a hear- 
ing of these motions, granted the motion of the plaintiff, 
and rendered judgment against the garnishee for $576, which 
was the amoimt of the plaintiff's claim against the copartner- 
ship of the Harkins Company. Mr. Jennings^ the garnishee 
defendant, appeals. 

Beepondent moves to dismiss the appeal because no tran- 
script was filed in the clerk's office within ninety days after 
the notice of appeal. The notice of api)eal was filed on 
April 20, 1904. The transcript was filed on August 27, 
1904. The motion to dismiss was not made until after the 
transcript had been filed. We have frequently held that 
the failure to file the transcript within ninety days is not 
jurisdictional. Ellis v. Bardin, 36 Wash. 122, 78 Pac 677, 
and cases cited. See, also. Dean v. Oregon B. & Nav. Co., 
38 Wash. 565, 80 Pac. 842. The motion is denied. 

Conceding, for the purposes of this appeal, that the act 
relating to sales of stocks of merchandise in bulk applies to 
the transfer in question in this case, and also that the trans- 
fer is void as to creditors not parties thereto, without intend- 
ing to decide either of these questions^ the judgment of the 
lower court must still be reversed. The appellant, in answer 
to the writ of granishment, denied that he was indebted 
to the partnership or any member thereof, and denied that 
he had any property in his possession or under his control 
belonging to the partnership or any member thereof ; then, by 
way of affirmative defense and "in explanation" of his 
answer, set up the assignment to him, and allied that, under 
the trust deed, he had in his possession $854.02 to be dis- 
tributed pro rata among the creditors, one of whom was the 
plaintiff or his assignor. It is true that the affirmative an- 
swer did not allege directly that the assignment was made 
at the instance of the plaintiff or his assignor, or that the 

a— 89 WASH. 



114 McAVOY V. JENNINGS. 

Opinion Per Mount, C. J. [39 Wash. 

plaintiff had notice thereof and acquiesced therein and rati- 
fied the same, but the answer was not attacked upon that 
ground. If respondent had moved against the answer by 
demurrer, the appellant would have been authorized to amend 
in this respect. Green v. Moore, 24 Wash. 241, 64 Paa 
151. Eespondent^ however, filed a reply denying all the 
allegations of the answer, and treated the answer as having 
alleged that the transfer was made by and with the consent 
of the plaintiff ; because it says, "and denies that said trans- 
fer was made with the consent of all the creditors and says 
that it was not made with the knowledge or consent of this 
plaintiff, or the American Savings Bank & Trust Company, 
a corporation, as assignor.'* This reply, of course, was not 
to be considered upon a motion of the plaintiff for judg- 
ment upon the answer. The only effect of the reply was to 
put in issue the facts alleged in the answer. 

We must, therefore, upon this appeal, treat the answer 
as the lower court was required to treat it^ as containing all 
amendments which could have been made. It is clear that, 
if the transfer of the partnership property was made to the 
appellant by the partnership at the instigation of the cred- 
itors, for the purpose named, the transfer was not void as 
between the parties^ A creditor, who was a jwirty to the 
transfer and at whose instance and for whose benefit the 
transfer was made, cannot be permitted to say that it was 
fraudulent as to him, or that, because it was fraudulent as 
to some other creditors, he may take advantage of his own 
wrong and thereby obtain a preference by attachment or 
garnishment Under the pleadings in the case, there was a 
clear issue of fact, which should have been tried out in the 
regular way. 

The judgment is reversed, and the cause remanded for 
further proceedings. 

DuNBAE, Hadley, and Fullebton, JJ., concur. 
RuDKiN, Root, and Ceow, JJ., took no part. 



STATE EX REL, GIBSON v. SUPERIOR COURT. J 15 
May 1905] Opinion Per B^jixebton, J. 



(No. 56SI. Decided May 29, 1906.) 

TnE State of Washington, on the Relation of A. 8. 

Gibson et ah. Plaintiff, v. The Supeeior Court 

FOR Pierce County et ah. Respondents} 

Appeal and Erbob — Supersedeas — ^Tempobaby Injunction — Opeba- 
TiON OP Shooting Galleby and Musical Instruments — Nuisance. 
A temporary injunction pending the action, enjoining the continu- 
ance of the operation of a shooting gallery and certain musical in- 
struments, as a nuisance especially injuries to the plaintiff, cannot 
be superseded on appeal, as a matter of right, since it is a preventive 
and not a mandatory injunction. 

Application filed in the supreme court May 2, 1905, for 
a mandamus to compel the superior court for Pierce county, 
Huston, J., to fix the amount of a supersedeas bond, upon 
an appeal from a temporary injunction. Denied. 

Williamson & Williamson and J. W. A. Nichols, for 
relators. 

H. H. Johnston, for respondents. 

Fullerton, J. — On April 14, 1905, one John Gran- 
tham brought an action in the superior court of Pierce county 
to enjoin the relators from operating, in connection with 
their business, a shooting gallery, and two certain instru- 
ments known respectively as a "tonophone" and an "orchest- 
rion," alleging that their operation constituted a public 
nuisance specially injurious to himself. At the time of com- 
mencing his action, Grantham applied for a temporary in- 
junction pending the final determination of the action. 
K'otice of this application was given the relators, and a 
hearing had thereon, at which hearing the court granted the 
injunction applied for, in which it restrained the relators 
from operating the shooting gallery, the tonophone, and 
orchestrion, until the final determination of the action. The 

1 Reported in 80 Pac. 1108. 



116 STATE EX REL. GIBSON v. SUPERIOR COURT. 

Opinion Per Fullebton, J. [39 Wash. 

relators gave notice of appeal from the order, and applied 
to the court to fix the amount of the bond it would require 
to supersede the order pending the appeal. The court de- 
clined to fix the amount of the bond, on the ground that 
the order was not one that could be superseded. The re- 
lators thereupon applied to this court for a writ of mandate 
to compel the trial court to fix the amount of such bond. 

Tram the petition for the writ and the return thereto, it 
is gathered that Grantham, for some years last past) has 
held a lease upon a part of a certain building, in the city 
of Tacoma, in which he has conducted a hotel and lodging 
house, under the name of "Hotel Gordon;" that, about a 
year preceding the commencement of this action, the prede- 
ces3ors in interest of the relators leased the remaining part 
of the building, being a room on the ground floor, and fitted 
it up for the exhibition of pictorial views, enlarged and 
made attractive by means of electrical contrivances. The 
"tonophone" was put in at or near the time the business 
was first opened, the shooting gallery was put in about 
December 4, 1904, and the "orchestrion" about one week 
prior to the commencement of the action. It will be observed, 
therefore, that the order of the court had the effect of chang- 
ing the status quo of the parties, as it prohibited the re- 
lators from conducting a part of their business and from 
operating the so-called musical instruments, all of which they 
were doing at the time the injunction issued. 

The relators contend that, when considered with reference 
to the right of supersedeas, there is a distinction between 
an injunction that merely restrains the commission of an 
act the defendant is about to commit or attempting to com- 
mit, and one that restrains, the continuance of an act which 
he is performing at the time of the issuance of the order; 
that the one cannot be superseded on an appeal, for the 
reason that the status qwo of the parties is not changed by 
the injunction^ the effect of the same being in fact to main- 



STATE EX RBL. GIBSON v. SUPERIOR COURT. 1 1 7 

May 1905] Opinion Per Fullebton, J. 

tain the status quo of the parties; while the other can be 
sui)erseded, for the very reason that the injunction does not 
maintain^ but actually changes^ the status quo. 

The distinction here sought to be drawn between injunc- 
tions that can be superseded and those that cannot is not 
the distinction ordinarily drawn by the cases. According to 
the usual classification, injunctions are either mandatory or 
prohibitory; a mandatory injunction being one that compels 
the performance of some affirmative act^ while a prohibitory 
injunction is one that operates to restrain the commission 
or continuance of an act; and it is only the former that is 
superseded by taking an appeal and giving the supersedeas 
bond provided by statute. The reason usually given for this 
distinction is that an appeal and supersedeas does not destroy 
the intrinsic effect of a judgment; that, nothwithstanding the 
appeal, the judgment is still the measure of such of the 
ri^ts of the parties as it adjudicates; and until reversed 
it operates as an estoppel, and as res judicata, as effectively 
as it would had no appeal therefrom been taken, and no 
supersedeas bond given. In other words, the appeal and 
supersedeas operates as a stay of affirmative action upon the 
judgment, as a supersedeas of execution, but does not destroy 
the judgment in so far as it can operate without the aid 
of an execution. 

While there are cases to the contrary, this di&tinction is 
supported by the great weight of authority. In the Slaughter- 
House Cases, 10 Wall. 273, 19 L. Ed. 915, Mr. Justice 
Clifford, speaking for the court, said, "It is quite certain 
that neither an injunction nor a decree dissolving an in- 
junction passed in a circuit court is reversed or nullified 
by an appeal or writ of error before the cause is heard in 
this court;" and it was held that the same rule applied to 
writs of error from state courts in equity proceedings. To 
the same effect is Hovey v, McDovald, 109 U. S. 150, 3 
Sup. Ct 136, 27 L. Ed. 888. In Leonard v. Ozark Land 



118 STATE BX RBL. GIBSON v. SUPERIOR COURT. 

Opinion Per Fullbbxon, J. [39 Wash. 

Co., 115 U. S. 465, 6 Sup. Ct 127, 29 L. Ed. 445, it was 
said: 

"The injunction ordered by the final decree was not vacated 
by the appeal. Slaughter-House Cases, 10 Wall. 273, 297 ; 
Hovey v- McDonald, 109 U. S. 150, 161. It is true that 
in some of the Slaughter-House Cases the appeal was from 
a decree making perpetual a preliminary injunction which 
had been granted at an earlier stage of the case, but the 
fact of the preliminary injunction had nothing to do with 
the decision, which was 'that neither an injunction nor a 
decree dissolving an injimction is reversed or nullified by an 
appeal or writ of error before the cause is heard in this 
court.^ This doctrine, in the general language here' stated, 
was distinctly reaiBrmed in Hovey v. McDonald, and it 
clearly refers to the injunction contained in the decree ap- 
pealed from, without reference to whether that injunction 
was in perpetuation of a former order to the same eflFect, or 
was then for the first time granted. The injunction, there- 
fore, which was granted by the final decree in this oase^ 
is in full force, notwithstanding the appeal." 

And in Knox County v. Harshman, 132 U. S. 14, 10 
Sup. Ct 8, 33 L. Ed. 249, it was said : "The general rule 
is well settled that an appeal from a decree granting, refus- 
ing, or dissolving an injunction, does not disturb its operative 
effect.'' In Central Union Tel Co. v. State, 110 Ind. 203, 
10 K E. 922, 12 K E. 136, the rule is stated in the fol- 
lowing language: 

"The effect of a supersedeas is to restrain the appellee 
from taking affirmative action to enforce his decree, but it 
does not authorize the appellant to do what the decree pro- 
hibits him from doing. The doctrine which our decisions 
have long maintained is thus stated in Nill v. Comparet, 
16 Ind. 107, 79 Am. Dec. 411: 'Indeed, the only effect 
of an appeal to a court of error, when perfected, is to stay 
execution upon the judgment from which it is taken. In 
all other respects, the judgment, until annulled or reversed, 
stands binding upon the parties, as to every question directly 
decided,' " 



STATE EX REL. GIBSON v. SUPERIOR COURT. II9 

May 1905] Opinion Per I^^ullebton, J. 

In Naiional Docks etc, B. Co. v. Pennsylvania B. Co*, 
64 N. J. £q. 167, 33 Atl. 936, it was said: 

"Moreover, I find no warrant for tbe insistment that the 
mere existence of an appeal suspends or in any manner 
affects the present inherent validity and force of the decree 
appealed from. The person in whose favor it is rendered 
is denied process to enforce it, and that is all.. Consequently, 
where the decree is itself an injunction, that injunction is 
in force and must he obeyed, unless, to continue the status 
quo of the parties pending the determination of the appeal, 
this court or the court of errors and appeals shall order a 
suspension of its effect And it is not necessary to issue a 
writ to bind the parties to the suit to obedience to such a 
decree. Being before the court, they are bound, at their 
peril, to take notice of the provisions of any decree rendered 
in due course upon the issues tendered." 

In State ex rel. Busch v. Dillon, 96 Mo. 56, 8 S. W. 781, 
where the effect of the statutory provision is that a perfected 
appeal shall stay execution, and all further proceedings upon 
a judgment appealed from, it is said: 

"Our law regulating practice in injunction and appeals 
is essentially the same as that prevailing in the federal courts 
and those of the other states, and the overwhelming weight 
of authority is that injunctions ordered on final hearing on 
the merits are not vacated by an appeal from that decree. 
A stay of proceedings from its nature operates only on orders 
and judgments commanding some act to be done, and does 
not reach injunctions." 

To the same effect are the cases of Gardner v. Gardner, 87 
N. Y. 18; Genet v. Delaware etc. Canal Co,, 113 N". Y. 
476, 21 K E. 390; Hawkins v. State, 126 Ind. 296, 26 
N. E. 43; Sixth Avenue B, Co. v. Gilbert Elev. B. Co., 
71 N. Y. 430; James v, Markham, 125 K C. 145, 34 S. 
E. 241 ; Bullion etc, Min. Co, v. Eureka Hill Min, Co., 5 
Utah 151, 13 Pac 174. 

The only cases we find supporting the relators' contention 
are from California. In that state all the decisions lay 
down the general rule that a mandatory injunction can be 



120 STATE EX RBL. GIBSON v. SUPERIOR COURT. 

Opinion Per Fuixebton, J. [39 Wash. 

superseded by an appeal and supersedeas bond, while a pro- 
hibitory injunction cannot^ but they do not agree on the 
question whether it is the status quo at the time of the com- 
mencement of the action, or at the time of taking the appeal, 
that is maintained by the stay of execution when a stay 
is effected. In Merced Min. Co. v. Fremont, 7 Cal. 130, it 
is said that, 

"A stay of proceedings, from its nature^ only operates 
upon orders or judgments commanding some act to be done, 
and does not reach a case of injunction ;" 

and, further, that, 

"The stay of proceedings, pending an appeal, has the legiti- 
mate effect of keeping them in the condition in which they 
were when the stay of proceedings was granted; it operates 
so as to prevent any future change in the condition of the 
parties/ 

This case was approved on both propositions in the cases 
of Dewey v. Superior Court^ 81 Cal. 64, 22 Pac. 333, and 
in Schwarz v. Superior Court, 111 Cal. 106, 43 Pac. 580. 
On the other hand, in the cases of Dulin v. Pacific Wood & 
Coal Co., 98 Cal. 304, 33 Pac. 123 ; Foster v. Superior Court, 
115 Cal. 279, 47 Pac 58 ; and Mark v. Superior Court, 129 
Cal. 1, 61 Pac. 436, the court, while adhering to its hold- 
ing that a prohibitory injunction could not be superseded, 
says that the effect of a stay of proceedings is to leave the 
parties in the same situation with reference to the rights 
involved in the action as they were prior to the granting 
of the injunction. These cases make no mention of the 
contrary rulings, and it may be that the statement was made 
through inadvertence, as the question does not seem to have 
been involved in either of them. But be this as it may, it 
seems to us that the cases first cited state the rule in ac- 
cordance, not only with the great weight of authority, but 
with the better reason. 

In this state, while no case presenting the precise facts 
of this case has been determined, it seems to us that the 



STATE BX REL. GIBSON v. SUPERIOR COURT. 121 

May 1905] Opinion Per iilTLLEBTON, J. 

question preeented has been determined in principle. In 
State ex rel. Commercial Elec. etc. Co. v. Stallcup, 15 Wash, 
263, 46 Pac. 251, we held that a temporary injunction, re- 
straining and enjoining the defendant from stringing electric 
wires on the streets of the plaintiff city, could not be super- 
seded on an appeal therefrom. In State ex rel. FlaJierty 
V. Superior Court, 35 Wash. 200, 77 Pac 33, we held the 
same way with reference to a final order of injunction 
enjoining the appellant from fencing up and otherwise ob- 
structing a roadway. In these cases the question presented 
differed from the question in the case before us, in that 
the injunctive orders restrained the commission of an act, 
while the one before us restrains the continuance of an act. 
But, according to all of the definitions, an injunction which 
restrains the continuance of an act or a series of acts is 
just as much a preventive or prohibitory injunction as is 
one which restrains the commission of an act> and, this being 
BO, neither can be superseded on an appeal. 

It is thought, however, that the case «f State ex rel. Byers 
V. Superior Court, 28 Wash. 408, 68 Pac. 865, lays down 
a different rula But it will be seen, on an examination of 
that case, that the injunctive order there in consideration 
was a mandatory injunction, as it commanded the defendant 
to deliver to the appellant certain books of account^ moneys, 
and other property, of which he was in possession, belonging 
to a corporation. While the court said that the effect of a 
stay of proceedings was to preserve the status quo of the 
parties, it is clear that it meant nothing more than that a 
mandatory injunction could be superseded. 

It may be that the court itself has inherent power to sus- 
pend the effect of a prohibitory injunction, when the pur- 
poses of justice require it, jjending a decision of the merits 
on an appeal (Hovey v. McDonald, supra), but this ques- 
tion we do not decide. The relators insist that they are en- 
titled to supersede the order appealed from as a matter of 



122 HANER V. FTJRUYA, 

Opinion Per Rudkin, J. [39 Wash. 

right, and this we hold they cannot do, as the order is a 
preventive, and not a mandatory, injunction. 

The application is denied. 

Mount, C. J., Eudkin, Ckow, Hadley, and Dunbar, 
JJ., concur. 



(No.6532. Decided June 6, 1906.) 

P. S. Haner et ah. Respondents, v. M. Furuya, Appellant} 

Principal akd Agent — Pubchase of Goods by Agent — ^Authority 
— Recognition and Acquiescence — Representations of Genebai. 
Manager — ^Estoppel. Where goods were sold to one claiming to be 
an agent of the defendant, and the vendor twice made inquiry at 
defendant's office and was referred to a certain room, supposed to 
be a department of defendant's business, and was there each time 
assured that the goods would be paid for by defendant as agrreed by 
the agent, the defendant, upon his return from abroad, cannot 
escape liability for the goods by showing that they were purchased 
for an incorporated company doing business in said room, in which 
defendant was only a stockholder, and that defendant's general man- 
ager in charge of his business did not know that the company had 
been incorporated. 

Appeal from a judgment of the superior court for King 
county, Albertson, J., entered October 12, 1904, upon find- 
ings in favor of the plaintiffs, after a trial before the court 
without a jury, in an action upon account for goods sold 
and delivered. AflSrmed. 

Walter A. Keene, for appellant 

J. D, Bauer and Smith & Cole, for respondents. 

RuDKiN, J. — Between the 27th day of February and the 
7th day of May, 1903, the defendant Furuya furnished to 
the Xorthem Pacific Railway Company a number of Jap- 
anese laborers, who were engaged in the construction of a 
drainage ditch for the railway company, near Wickersham, 

1 Reported in 81 Pac. 98. 



HANER V. FURUYA. 123 

June 1906] Opinion Per Rudkin, J. 

in Whatcom oounty. The railway company paid Furuya 
for the laborers so furnished, and Furuya in turn paid the 
laborers direct Among these laborers was one Matsumoto, 
called a bookman. The authority or duty of this bookman 
is not clear from the testimony, further than that he trans- 
mitted orders from the railway foreman to the Japanese 
laborers, many of whom could not speak or understand the 
English language. 

Between the 27th day of February and the 28th day of 
March, 1903, the plaintiffs in this action sold and delivered 
to said Matsumoto, for the laborers above mentioned, goods, 
waresj and merchandise, of the value of $250, Matsumoto 
representing to the plaintiffs^ at the time of sale, that he 
was the agent of the defendant Furuya, and that Furuya 
would pay for the goods so furnished at the end of the month. 
About the end of the month, the account not having been 
paid, Hauer, one of the plaintiffs, called at the store room 
of the defendant Furuya, in the city of Seattle, and made 
inquiry in regard to the payment of this account. He was 
referred to room 7 upstairs, and there inquired for the agent 
of the defendant Furuya. A person in charge of the office 
responded to his inquiry, and Haner informed him of the 
nature of the account^ and the circumstancee under which 
the goods were sold to Matsumoto. Haner was assured that 
the account was all right, and would be paid by Furuya at 
the end of the month. With this assurance^ Haner returned 
home, and the plaintiffs continued to furnish goods to Mat- 
sumoto until the account run up to the amount set forth 
in the complaint. About the latter part of April, one of 
the plaintiffs' employees again called at the place of busi- 
ness of the defendant Furuya, in regard to the account, and 
w^as again referred to room 7 upstairs. He was there in- 
formed that the books were not ready. The sale of the goods 
to Matsumoto, their value, and the nonpayment of the ac- 
count are admitted. The only question at issue was the 
agency of Matsumoto, or his authority to bind the defendant 



124 HANBR V. FURUYA, 

Opinion Per Rudkin, J. [39 Wash. 

Furuya. The court below found in favor of the plaintiflFs, 
and entered judgment accordingly. From this judgment, 
the defendant Furuya appeals. 

Counsel for appellant, in an affidavit filed in support of 
a motion for a new trial, and in his argument in this court, 
frankly admits that he assutned, throughout the trial in the 
court below, that room 7 above the appellant's store room, 
to which the respondents were referred for information re- 
lating to the account in suit^ was in fact one of the de- 
partments of the appellant's business. The court below so 
assumed and so found, and this finding is amply supported 
by the testimony. If this were true, there can be no ques- 
tion that the authority of Matsumoto was so far recognized 
and acquiesced in by the authorized representativee of the 
appellant that it would be a gross fraud to now permit the 
appellant to repudiate his acts. 

The main contention of the appellant appears to be that 
he filed certain affidavits in support of his motion for a new 
trial, which were not controverted, and that this court should 
assume the facts stated in these affidavits to be true, or order 
a new triaL From these affidavits it appears that the con- 
tract under which the appellant furnished laborers to the 
railway company was assigned to a corporation, known as 
the "Construction and Maintenance Company," on the 2d 
day of March, 1903, and that room 7 upstairs, to which 
the respondents were referred, was in fact the office of the 
Construction and Maintenance Company, and that the ap- 
pellant had no connection therewith except as a stockholder 
in the corporation. 

While counsel was perhaps excusable in not ascertaining 
these facts before the trial, the appellant and his general 
manager were not It is true, the appellant was absent in 
Japan, and his general manager made affidavit that ho did 
not know that the Construction and Maintenance Conmanv 
was a corporation, until after the trial. But this general 
manager had full charge of all business of the api)e11ant 



DEMPSIE V. DARLING. 125 

June 1906] Statement of Case. 

during his abeeno^ and was bound to know whether room 
7 was a department of the appellant's business and under 
his control, or the office of a separate and independent con- 
cern. The fact that the manager claims that he did not 
know the connection between the appellant's business and said 
room 7, until after the trial, convinces us that there was 
such recognition of Matsumoto's agency as is claimed by 
the respondents, and the appellant is now estopped to contro- 
vert or deny it. There is no error in the findings or judg- 
ment of the court, or in the order denying the motion for 
a new trial, and the judgment is accordingly affirmed. 

Mount, C. J., Hadley, Fullerton, Dunbak, Ceow, and 
Root, JJ., concur. 



(No. 6667. Decided June 14, 1905.) 

E. Dempsie, Appellant, v. F. L. O. Daeling et al.. 

Respondents} 

Nuisance — Injunction to Abate Dibobdeblt House — ^Adjoining 
Pbopebty Not Occupied— Complaint — Sufficiency. Injunction lies to 
abate the maintenance of a bawdy house as a public nuisance spe- 
cially injurious to plaintiff's vacant adjoining property, where it is 
alleged that plaintiff Intends to at once build thereon for residence 
purposes; and, upon demurrer, such allegation sufficiently shows the 
certainty of damage to authorize injunction; the remedies at law 
being inadequate. 

Appeal from a judgment of the superior court for Spo- 
kane county, Kennan, J., entered March 18, 1905, dismiss- 
ing an action to abate a nuisancer, upon sustaining a demurrer 
to the complaint. Eeversed. 

Harris Baldwin, for appellant 

Henley £ Kellam, and Sullivan, Nuzum & Nuzum, for 
respondents. 

1 Reported in 81 Pac. 152. 



126 DEMPSIB y. DARUNQ. 

Opinion Per Dunbab, J. [39 Wash. 

DuNBAB, J. — The complaint in this case alleges^ in sub- 
stance, that the appellant owns a parcel of vacant ground, 
in the city of Spokane; that contiguous to this ground is 
a house and lot owned by the respondent Philadelphia Se- 
curities Company; that the house has three stories; that 
the respondent Philadelphia Securities Company, for a long 
time ha3 been, and is, renting the second and third stories 
of the house to respondent F. L. O. Darling, as and for 
a house of ill f ame^ and for the purpose of enabling her, as 
proprietress, to conduct a house of prostitution therein, and 
to enable her to have and harbor therein prostitutes and 
lewd and abandoned women for the purposes of prostitu- 
tion; that, pursuant to said purpose, the said respondent 
F. L. O. Darling has been, and is, conducting a house of 
prostitution in the second and third stories of said house, 
and that prostitution has been, and is, practiced in the sec- 
ond and third stories, by the said proprietress and the other 
respondents, who are lewd and abandoned women, and reside 
therein ; that it is the wish and purpose of appellant to build 
at once upon his said vacant ground a house^ to be by him 
devoted to and occupied for some respectable and lawful 
purpose; that, by reason of the conducting of a house of 
prostitution in the aforesaid second and third stories of said 
house, and the presence of prostitutes therein, any house 
which appellant might build upon his ground would be un- 
desirable for any lawful use, and he could not occupy it 
or rent it for any lawful purpose; and that, by reason of 
the facts above stated, his ground is being continuously and 
irreparably damaged by diminution in value ; and an injunc- 
tion was prayed for. The respondents interposed a demurrer, 
to the effect that the complaint did not state facts sufficient 
to constitute a cause of action. The demurrer was sustained, 
and the appellant having refused to plead further, a final 
judgment of dismissal of the action was rendered in favor 
of respondents^ from which judgment this appeal is taken. 

We think the court erred in sustaining the demurrer to 



DEMPSIB V. DARLING. 127 

June 1905] Opinion Per Dunbab, J. 

this complaint. It is contended by the respondents^ in sus- 
tentation of the action of the court, that, inasmuch as the 
plaintiff's lot was a vacant lot, and that a house had not 
already been built upon it which would be affected by the 
nuisance complained of, the damages are, therefore, too re- 
mote and speculative; that the plaintiff ha^ not yet built 
upon said lot^ and that he may never do so. But the alle- 
gation of the complaint is to the effect that it is the purpose 
of the plaintiff to build at once upon this lot a house for 
the purpose of lease or rent for some reputable and lawful 
purpose; and it would seem unreasonable to compel the plain- 
tiff to wait until he had been to the expense of constructing 
a house and advertising the same for rent for a reasonable 
time before applying to the courts for a remedy which would 
necessarily, in the natural process of litigation, be delayed 
for a considerable length of time^ thereby depriving him of 
a right to which he is entitled, viz., to enjoy the use of his 
property without hindrance through the operation of a 
nuisance. 

It may be conceded at the outset that, when a party seeks 
the aid of a court of equity by injunction, he must show 
not only clear legal or equitable right, but, also, a well- 
grounded apprehension of immediate injury to his rights; 
and that, where no necessity is shown for the injunction as 
a means of protection to such rights, it should not be granted. 
But it seems to us that the immediate injury is sufficiently 
set forth in the complaint under consideration. 

The case of Dana v, Valentine, 5 Met. (Mass.) 8, cited 
by respondents, and which it is claimed is exactly in point, 
seems to us not to reach the case under consideration at 
all. There, it is true, the court used the following language, 
quoted in appellant's brief, viz.: 

"Upon no principle of equity can the court interpose in 
their favor, by injunction on the defendant to desist from 
carrying on his trade ; there being no certainty that dwelling 
houses will ever be erected on these premises: Or, if there 



128 DEIMPSIB V. DARLING. 

Opinion Per Dunbab, J. [39 Wasli. 

should be, it is uncertain wken such erections may be made. 
To require this extraordinary relief, the injury complained 
of must actually exist, or the danger must appear to be cer^ 
tain and immediate, and not depending on any contingency. 
We think it therefore very manifest, that these owners of 
vacant lots have made out no title to the interposition of a 
court of equity." 

An examination of that case, however, reveals the fact 
that that action was brought against the defendant, both by 
the owners of vaxjant lots and by the owners of buildings 
adjacent to the alleged nuisance, which was the business of 
manufacturing soap and candles, and of slaughtering cattle ; 
and the injunction was denied on two grounds, viz. : first, 
that the plaintiffs, if they had been injured, had a complete 
and adequate remedy at law ; and second, that the defendant 
had made out a good prescriptive right and justification- 
So that, in any event, the complaint of the parties who 
owned the vacant lots would have failed under the general 
ruling of the court on the two propositions just above men- 
tioned, and what was said in relation to them was purely 
without the case. But, in any event, their right to relief 
was denied si)ecially upon the ground that they had a com- 
plete and adequate remedy at law, and that an action at 
law for the recovery of damages for the diminution of the 
value of their lands by the nuisance alleged was available 
to them, there being no certainty that any dwelling houses 
would ever be erected upon the premises, or, if they should 
be, when such erections would be made^ and that equity 
would not reach beyond these contingencies to afford relief. 

But, as we have before noticed, so far as the certainty of 
the building is concerned, and also the certainty of the time, 
the allegation of the complaint, which must be taken to state 
the truth, is to the effect that the building will be erected 
at once. And as to the second proposition there decided by 
the court, that an action for damages was the only resort 
of the plaintiffs (the owners of vacant lots), liiat question 



DBafPSIB V. DARLING. 129 

June 1905] Opinion Per Dunbab, J. 

waa decided adversely to the reepandents' contention by thia 
court in Ingersoll v, Rousseau, 35 Wash. 92, 76 Pao. 513, 
where it was held that injunction lies to abate the main- 
tenance of a bawdy house as a public nuisance specially 
injurious to plaintiffs adjoining property used for residence 
purposes, the common law remedies of indictment and action 
on the case being inadequate, and that this rule has not been 
changed by statute in this stata The above conclusion was 
reached after a lengthy and evidently painstaking investi- 
gation of the law and an investigation of the authorities, 
ancient and modem, on this subject; and puts at rest the 
contention made by the respondents that the remedy by in- 
junction was not open to the plaintiff in this case if the 
petition in other respects stated a cause of action. 

The respondents also cite 1 High, Injunctions, § 774, where 
it is said by that author: 

"To justify a court of equity in enjoining a nuisance of 
the class under consideration, the person aggrieved must show 
to the court some actual, substantial damage and not merely 
a remote, contingent, or prospective injury/^ 

But the preceding section discloses the class under consid- 
eration. ITie author there was discussing injunctions which 
were asked for against the operation of legitimate businesses, 
such as the burning of brick, the erection of a chandlery, or 
of slaughter houses, or of livery stables, or the operation of 
lime kilns or gas works — ^businesses that were in themselves 
lawful enterprises which the government is anxious to foster 
under proper regulations and locations. But the nuisance 
complained of in this case is of an entirely different char- 
acter. It is degrading, immoral, indecent, and always under 
the ban of the law, and courts ought not to be too exacting 
with citizens who are asking relief from such impositions 
upon their rights. An examination of the other cases cited 
by respondents shows that they are not applicable to the 

0— «) WJlSB. 



X30 SNIDER y. BADERE. 

Opinion Per Curiam. [39 Wash. 

facts stated in this complaint^ bs ooi^strued by the decision 
of this court in Ingersoll v. Botisseau, supra. 

The judgment will be reversed, with instructions to over- 
rule the demurrer to the complaint. 

Mount, C. J., Root, Cbow, Hadley, Fullebton, and 
EuDKiN, JJ., concur. 



(No. 5S09. Decided June 30. 1906.) 

J. W. Snider et ah. Respondents, v. Feed Badeee et ah. 

Defendants, Mitchell, Lewis & Staveb 

Company, Appellant} 

Judgment — ^Vacation — Appeal — ^Recobd— Failube to Show Wart 
OF Jurisdiction. Upon appeal from a Judgment entered upon find- 
Ings of fact and conclusions of law» regular on its face, and appar- 
ently entered upon the service of due process, it will be presumed 
that the court acted within its jurisdiction where the appellant brings 
up in the record only the summons, affidavit of servioe, decree, notice 
of appeal, and motion to vacate for defects in the summons, and 
fails to show affirmatively that the court acted without jurisdiction, 
there being nothing to show that it was a default judgment, or that 
there was no appearance or no subsequent summons. 

Appeal from a judgment of the superior court for Kitti- 
tas county, Eudkin, J., entered May 7, 1904, upon findings 
in favor of the plaintiffs, in an action upon contract. 
Affirmed. 

Shank & Smith and H, C. Belt, for appellant. 
IF. D. Lambuth, for respondents* 

Per Curiam. — This is an appeal of defendant Mitchell, 
Lewis & Staver Company, from a judgment alleged to have 
been taken by default against it, the contention being that 
the summons served was not definite enough to give the 
court jurisdiction over the persons of the defendants^ This 

1 Reported in 81 Pac. 302. 



SNIDER V. BADBRB. 131 

June 1905] Opinion Per Curiam. 

question, however, as we view the law governing Hiis case, 
it is not necessary to decide. The appellant has brought 
here only the summons, affidavit of service, decree, and notice 
of appeal. The decree, after the entitling of the cause, is 
as follows: 

"This cause coming on this day, on motion of plaintiffs 
for judgment and decree in accordance with the finding of 
facts and conclusions of law made and filed herein, and the 
court being now fully advised, grants said motion. Wherer 
fore, it is by the court considered, adjudged, and decreed 
that plaintiffs have judgment against the defendants," etc. 

It is well established that every intendment will be 
brought to bear to sustain a judgment which is regular on 
its f ace^ and, in the absence of a showing to the contrary, 
the presumption will be that the court acted within its 
jurisdiction. There is nothing in this record to show that 
the judgment was a default judgment, or that subsequent 
summons might not have issued, or that the parties defendant 
did not appear. If the summons was not sufficient to give 
the court jurisdiction, it might well be that one of the 
findings of fact spoken of by the court was a finding to 
the effect that the defect in the summons had been cured 
by the appearance of the defendants. Those findings are 
not before this court, and the language of the court indi- 
cates that the judgment was based upon regular proceedings ; 
and, in the absence of a showing to the contrary, this court 
will not presume that the trial court acted without juris- 
diction. 

A supplemental record, however, has been filed by the 
appellant^ evidently with the intention of curing the want 
of a necessary showing of lack of jurisdiction in the record, 
to the effect that the defendant, appellant here, moved for 
the vacation of the judgment for the reason that the sum- 
mons upon which said purported default judgment was ren- 
dered was insufficient to give jurisdiction to the court to 
render any personal judgment against the defendant. But, 



MO m 



132 STATE EX REL. MARTIN v. PBNDERGAST. 

Syllabus. [39 Wash. 

if the appellant relies upon this supplemental record, its 
showing is also in this regard absolutely insufficient, for 
not only does it fail to set forth a default judgment, but 
there is no record presented here which would indicate that 
the court had denied the motion to vacate, the supplemental 
record simply setting forth the affidavit of service of the 
motion, the motion to vacate, and the motion to quash the 
pretended service of the summons. The appellant, having 
failed to affirmatively show that the judgment of the court — 
which is regular upon its face and the recitals of which 
indicate that it is based upon jurisdiction — ^was actually 
rendered without jurisdiction, cannot ^ prevail upon this 
appeal. 

The judgment is affirmed. 



(No. 5637. Decided July 1, 1906.) 



TitE State of Washington, on the Relation of C, Victor 
Martin, Judge etc. Respondent, v. E. K. Pendergast, 
Prosecuting Attorney of Okanogan County, Appellant} 

AppEAii — Bond— Amount — Sufficiency. Where, upon an appeal 
from a Judgment of contempt, the court fixed the amount of the 
supersedeas bond, which was given before the journal entry of Judg- 
ment, a subsequent appeal from the Judgment cannot be dismissed 
for insufficiency of a second bond in the sum of $200, when sucli 
bond was not conditioned to effect a stay, but only as an appeal 
bond. 

Ck)NTEMPT — Parties — ^Presidino Judge — ^Appeal — ^Dismissai.. The 
trial Judge is not a proper party to a proceeding for contempt in a 
court over which he presides, and wh^n Joined an appeal from the 
Judgment will be dismissed as to him. 

Courts — Jurisdiction — Process — Orders Forbidding Payment of 
Court Stenographer. An order of the superior court, not made in 
any action or proceeding, and without pleading or process, for- 
bidding the payment of county warrants for stenographer's fees In 
cases pending in such court, is void. 

1 Reported in 81 Pac. 324. 



STATE EX REL. MARTIN v. PENDERGAST. 133 

July 1905] Opinion Per Rudkin, J. 

Contempt — ^Void Obders. AdYlsing the violation of a void order 
is not contempt of court. 

Contempt — Prosecution — ^Affidavit — ^Necessity of. A contempt 
committed without the presence of the court can only be prose- 
cuted by affidavit stating the facts constituting the contempt. 

Contempt — Summary Punishment — Judgment — Recitation of 
Facts — Sufficiency — Order to Apoix)6Ize to Court — Validity. A 
Judgment of contempt reciting that an attorney refused to obey an 
order of the court requiring him to apologize to the trial judge, cannot 
be upheld as a summary punishment of a contempt committed in 
the presence of the court, since such Judgments must, under Bal. 
Code, § 5800, recite the facts constituting the contempt, and it was 
not contempt to refuse to apologize, such order exceeding the author- 
ity of the court. 

Appeal from a judgment of the superior court for Oka- 
nogan county, Martin, J., made September 27, 1904, 
adjudging the appellant guilty of contempt of courts upon 
his refusal to comply with an order to apologize. Reversed. 

E. W. Taylor and E. K. Pendergast, for appellant 
0- Victor Martin and Ira Thomas, for respondent. 

RuDKiN, J. — This is an appeal from the following order 
or judgment of the 8ui)erior court of Okanogan county : 

**It is hereby ordered, adjudged and decreed, that the 
clerk of this court enter this order, showing that on the 
27th day of September, A. D. 1904, the said Honorable 
C. Victor Martin, while sitting as the presiding judge of 
this court, in open court^ announced to said defendant that, 
unless he, the said defendant, apologized to him, the said 
Hon. C. Victor Martin, as such judge of said court, that 
he, the said defendant, would be in contempt of court, and 
the said defendant failing and refusing to apologize, the 
said Hon. C. Victor Martin then pronounced this judgment 
and sentence against the said defendant, to wit: That said 
defendant E. K. Pendergast pay a fine of $50, and that he, 
the said defendant, be suspended from the practice of law 
in this court until said fine was paid, and said apology 
made." 



134 STATE EX RBL. MARTIN v. PENDEROAST 

Opinion Per Rudkin, J. [39 Wash. 

The respondent moves to dismiss the appeal, on the ground 
that no sufficient appeal bond was given or filed. The order 
appealed from was made orally, on the 27th day of Sep- 
tember, 1904. The appellant immediately gave notice of 
appeal therefrom, and applied to the court to fix the amount 
of the supersedeas bond pending the appeal. The court 
fixed the amount of such bond in the sum of $200, and on 
the same day a bond in the sum of $400, conditioned as 
both a cost and a supersedeas bond, was filed. No written 
entry of the order was made or filed for record until the 
21at day of December, 1904. On the 26th of December, 
1904, a second notice of appeal was given from the order 
as entered on the 21st inst, and a cost bond in the sum of 
$200 was filed on the same day. The motion to dismiss is 
based on the insufficiency of this second bond. 

Counsel for respondent state in their motion that the 
bond is conditioned both as an appeal and a supersedeas 
bond, and is in an insufficient amount But in this they 
are in error. The bond makes no reference whatever to a 
supersedeas, and is conditioned only for the payment of 
the costs and damages that may be awarded against the 
appellant, on the appeal or the dismissal thereof, as pre- 
scribed bv Bal. Code, § 6505. The bond is therefore suffi- 
cient, and we are not called upon to decide whether any 
appeal bond is necessary on an appeal of this character. 
The motion to dismiss the appeal on the ground of the 
insufficiency of the bond is therefore denied. 

The respondent Martin further moves to dismiss the ap- 
peal as to him, on the ground tliat he was improperly made 
a party to the proceeding. The statute provides, Bal. Code, 
§ 5803, that in all cases of public interest the proceeding 
may be prosecuted by the prosecuting attorney on behalf of 
the state, and in all cases where the proceeding is commenced 
on the relation of a private party, such party shall be deemed 
a coplaintiff* with the state. The presiding judge is in no 
case a proper party to a proceeding for contempt in the court 



STATE EX REL. MARTIN v. PBNDERGAST. 135 

July 1905] Opinion Per Rttdkin, J. 

over whicb he presides; and, as to the respondent Martin, 
the motion to dismiss must be granted. 

Little need be said on the merits of the appeal- It appears 
that a controversy arose between the judge of the superior 
court of Okanogan county, and the county commissioners 
and county attorney thereof, over the employment of a 
stenographer to report the testimony in criminal cases pend- 
ing in said court On the 12th day of January, 1904, the 
board of county commissioners of said county adopted a 
resolution denying the authority of the superior judge to 
employ a stenographer in such cases at the expense of the 
county, and refusing to defray the expenses thereof. On 
the 17th day of May, 1904, the judge of the superior court 
made an order forbidding the county auditor and his deputies 
to issue any warrant or warrants in payment of the services 
of stenographers performed in such cases. On the 27th day 
of September, 1904, said court was engaged in the settle- 
ment of a statement of facts in a certain criminal case 
therein pending. In tie course of the proceedings it de- 
veloped that the statement of facts had been prepared by 
a stenographer at the expense of the oounty, and that the 
county auditor had paid for such services! by warrant. The 
court thereupon directed the appellant, as prosecuting attor- 
ney of the county, to investigate the matter and, if he 
ascertained that the oounty auditor had issued warrants in 
violation of the above order of May 17, to proceed against 
him as for a contempt. The appellant was further directed 
to report to the court by seven o'clock that evening. At 
seven o'clock the appellant reported in writing to the effect 
that, in his opinion, the order of May 17 was null and 
void, and that he could not conscientiously make the neces- 
sary affidavit or prosecute the auditor for contempt. A 
somewhat heated controversy thereupon took place between 
the presiding judge and the prosecuting attorney, which 
resulted in the making of the order appealed from. 

The appellant contends that he was adjudged guilty of 



136 STATE EX REfL. MARTIN v. PENDERGAST. 

Opinion Per Rudkih, J. [39 Wash. 

contempt for counseliiig and advising a violation of the 
order of die court of May 17, above referred to, and that 
the judgment against him is erroneous for several reasons: 
First, because no such contempt is shown by the record; 
second, because the order of May 17 was a nullity, and 
no contempt could arise from a violation thereof ; and third, 
because such contempt, if any, could only be prosecuted by 
affidavit Passing over the first reason assigned, the sec- 
ond and third are no doubt well grounded. The order of 
May 17 was not made in any pending action or proceeding. 
There was no pleading, no process, and no pretense of juris* 
diction to make the order. Again, if counseling a violation 
of such order were a contempt at all, it was a contempt 
committed without the presence of the court, and could only 
be prosecuted by affidavit. In Re Coulter, 25 Wasji. 526, 
65 Pac. 759. 

The respondent, on the other hand, contends, that the 
appellant was guilty of a contempt committed in the im- 
mediate view and presence of the court, and was sum- 
marily punished therefor. Should we adopt this view, it 
would not aid tlie cause of the respondent. Under Bal. Code, 
§ 5800, when a party is guilty of a contempt committed in 
the immediate view and presence of the court, he may be 
punished summarily therefor, but "an order must be made 
reciting the facts as occurring in such immediate view and 
presence, determining that the person proceeded against is 
thereby guilty of contempt, and that he be punished as 
therein provided." By the next section, in all other casee 
the facts constituting the contempt must be brought to the 
attention of tlie court by affidavit. In every case of contempt, 
therefore, the facts constituting the alleged contempt must 
api)ear of record, either in the order made or in the affidavit 
filed. It requires no argument to show that the facts re- 
cited in the order appealed from do not constitute a con- 
tempt An attorney is under no obligation to apologize to 
a court imder any circumstances, and the court exceeds its 



NICHOLS V. SCHOOL DISTRICT. 137 

July 1905] Syllabus. 

authority Tuiienever it makes sudi a demand. State ex reh 
Rohde V. Sachs, 2 Wash. 373, 26 Pac. 865, 26 Am. St 867- 
The reepondent concedes that so much of the order as at- 
tempts to suspend the appellant irom the practice of the 
law is void, and we will not discuss that question. State 
ex rel. Rohde v. Sachs, supra. 

The judgment of the court below must therefore be re- 
versed, with directions to dismiss the proceeding. 

Mount, C. J., Dunbab, Root, Cbow, Fullerton, and 
Hadlby, JJ., concur. 



No. 6574. Decided July 6» 1M6.) 

J. W. A. Nichols, Appellant, v. School Distbict No. 10, 
OF PiEBCE County, et ah. Respondents} 

Schools and School Districts — Pubchase of Building Sites — 
Ultba Vires. Under Bal. Ck)de, § 2367, the board of directors of 
school district No. 10, Pierce county, has authority to purchase a site 
for a high school building for the sum of $32,000, when it did not 
exceed the constitutional limit of indebtedness of the district. 

Same — ^Ratification of Purchase of Site — ^Election Authorizing 
H«REcnoN of School Building. An illegal or invalid purchase of a 
high school site by a school district board is impliedly ratified by a 
vote of the district at a special election, authorizing the building of 
a high school thereon and the issuance of bonds therefor. 

Same — Special Elections for Bonds — Conduct of — ^Requisites. 
Bal. Code, §§ 2398-2405, prescribing the method of conducting special 
school elections for the yalidation of illegal indebtedness, is a spe- 
cial act and has no reference to an election to authorize the Issuance 
of bonds for the purpose of erecting a high school building. 

Same — Canvass of Votes — ^Effect — ^Review by Courts. In a 
proceeding for an injunction to restrain the issuance of school dis- 
trict warrants, authorized at a special election for the purpose of 
erecting a high school building, the final return of the canvassing 
board, declaring the result, after canvassing the votes, regularly made 
and not impeached for fraud, nor attacked in any proceeding to 
obtain a review thereof, is final and conclusive on the courts as to 
the number of votes cast. 

1 Reported in 81 Pac. 325. 



138 NICHOLS V. SCHOOL DISTRICT. 

Opinion Per Cbow, J. [39 Wash. 

Appeal from a judgment of the superior court for Pierce 
county, Eice, J., entered November 12, 1904, upon findings 
in favor of the defendants, after a trial on the merits before 
the court without a jury, in an action to enjoin the issuance 
of school district warrants. AflSrmed. 

John C. Stallcup and H, W. Lueders, for appellant. 
F. Campbell, for respondents. 

Crow, J. — This is an action commenced by appellant, a 
taxpayer, against the board of directors of school district 
No. 10, of Pierce county, Washington, and John B. Reed, 
as county treasurer, to enjoin the issuance and sale of $200,- 
000 of school district bonds. From a judgment of dismissal, 
an appeal has been taken. 

The record shows that said sdiool district has for many 
years owned and used for high school purposes a certain 
building, situated on Tacoma avenue^ in the city of Taooma, 
and that, on March 11, 1903, said district contracted for, 
and purchased, a tract of land known as the "Tourist Hotel 
property," agreeing to pay therefor the sum of $32,000, 
and immediately issued a warrant for $16,000, as part pay- 
ment. Afterwards, on March 18, 1903, the board of 
directors duly called a special school election, for the pur- 
pose of submitting to the voters of said district a proposi- 
tion to issue bonds in the sum of $200,000, $35,000 to be 
used for the purchase of said Tourist Hotel site, and $165,- 
000, for the purpose of erecting a high school building 
thereon. An election was held in pursuance of this call, 
on April 18, 1903, at which time the proposition to issue 
said bonds was defeated. Afterwards, on July 7, 1903, the 
board of directors issued a second warrant, in payment of 
the balance duo for the purchase of said Tourist Hotel site. 
On March 2, 1904, by an amended resolution adopted by 
said board of directors, it was determined to call a special 



NICHOLS V. SCHOOL DISTRICT. 139 

July 1905] Opinion Per Cbow, J. 

election to be held on April 23, 1904, for the purpose of 
voting upon the following propositions : 

(1) Shall Tacoma school district No. 10, in Pierce 
county, Washington, borrow money and issue and sell bonds 
of said school district therefor, to run for a period of twenty 
years, in the amount of $200,000, the proceeds of said bonds 
to constitute a special fund, $100,000 thereof to be used for 
the erection of a high school building, and $100,000 to be 
used for the erection and improvement of other buildings? 
(2) Shall said district build a high school on the site known 
as "the Tourist Hotel property? (3) Shall said district 
build a high school on the present Tacoma avenue site? 
(4) Shall said school district sell the present Tacoma ave- 
nue high school property? (5) Shall said school district 
sell the Tourist Hotel property? 

Thereafter, on the 23d day of April, 1904, said election 
was held, and on April 26, 1904, the board of directors met 
with C. E. GriflSn, justice of the peace, in Tacoma precinct, 
Tacoma, Washington, as a canvassing board, and duly can- 
vassed the result of said election as required by law; the 
certificate made and filed by said canvassing board being as 
follows : 

"We the undersigned members of the board of directors, 
Tacoma school district No. 10, having met to canvass the 
results of the special election held Saturday, April 23, 1904, 
for the purpose of voting on the following propositions, 
to wit: [here follow propositions 1, 2, 3^ 4 and 5 just 
described] hereby certify that the whole number of ballots 
cast for the first proposition was 2,136; ^yes' receiving 1,349 
votes; W receiving 787 votes; 

"That the whole number of ballots cast for the second 
proposition was 2,063; 'yes' receiving 1,062 votes, and W* 
receiving 1,001 votes; | 

"That the whole number of ballots cast for the third | 

proposition was 1,935 ; 'yes' receiving 840 votes, and 'no' ^ 

receiving 1^095 votes; 

"That the whole number of ballots cast for the fourth 



140 NICHOLS V. SCHOOL DISTRICT. 

Opinion Per Cbow, J. [39 Wash. 

proposition was 2,038; *yes' receiving 872 votes^ and 'no' 
receiving 1,166 votes; 

"That the whole number of ballots cast for the fifth 
proposition was 2,074; 'yes' receiving 957 votes, and 'no' 
receiving 1,117 votes. 

"We hereby declare that proposition No. 1 'Bonds, yes' 
carried, having received the requisite three-fifths majority 
of all the votes cast. And proposition No. 2 having received 
a majority of all the votes cast, we declare carried. Propo- 
sitions 3, 4 and 5, having failed to receive a majority of 
all tlie votes cast for the respective propositions, we hereby 
declare them lost." 

Thereafter the officers provided by law proceeded to ad- 
vertise for bids for said bonds in the sum of $200,000, and 
on June 10, 1904, the bid of Rudoljii Kleybolte & Co., 
being the highest and best bid received, was accepted, and 
said board was about to issue said bonds when this injunc- 
tion proceeding was commenced. 

Numerous assignments of error are presented, but we think 
many of them without sufficient foundation to necessitate 
their discussion herein, and we will only discuss those of 
controlling importance. It is contended by appellant that 
the act of the school directors in purchasing said Tourist 
Hotel site was ultra vires, and also in direct contravention 
of the order of the voters of said school district as ex- 
pressed at said first election held on the 18th day of April, 
1903; also, that in making said purchase, the said district 
exceeded its constitutional limit of indebtedness. 

We are of the opinion that the act of said board was not 
ultra vires; that full authority for said purchase is given 
by § 97 of the code of education, 3 Bal. Code, § 2367 ; and 
that the appellant has failed to clearly show by the evidence 
that, when said school district made said purchase and issued 
warrants therefor, it did in fact exceed its constitutional 
limit of indebtedness. Were we to assume, however, that 
said purchase was in the first instance illegal, invalid, or 
ultra vires, nevertheless, at the second election held on the 



NICHOLS V. SCHOOL DISTRICT. 141 

July 1905] Opinion Per Cbow, J. 

23d day of April, 1904, and which we hold to have been 
valid, the act of said district in making said purchase was 
impliedly ratified, for the reason that by the vote of said 
district the board was instructed to build a high school upon 
said site^ and not to sell the same. 

It was contended by appellant upon the trial, and is con- 
tended here^ that sufficient and legal notice of said election 
of April 23, 1904, had not been given by said board of 
dirocfors. We have carefully examined the complaint, and 
fail to find that appellant has alleged any such want of 
notice^ But even had such defect been properly pleaded, 
the record shows said election to have been regularly and 
legally called, and the trial court found it to have been duly 
held, pursuant to said resolution of said board and notice 
thereof given as required by law. 

Appellant urges many alleged irregularities in the con- 
duct of said election, such as improper ballots, want of elec- 
tion booths, etc., apparently contending that this election 
should have been called and held imder Bal. Code, §§ 2398- 
2405. An examination of these sections, however, will show 
that they constitute a special act originally passed in 1895, 
Laws 1895, p. 26, relating only to the validating and rati- 
fying of illegal indebtedness^ afterwards incorporated into 
the code of education ; whereas, this election was called, not 
to validate or ratify an illegal indebtedness, but to confer 
upon the board authority to issue bonds to raise funds with 
which to erect school buildings^ including a high school. 

Appellant also contends that the trial court erred in not 
ordering a production of the ballots cast, and the poll books 
kept at said election, so that the court might ascertain 
whether the certificate made by the canvassing board was 
correct, and whether said board was justified in finding 
that the bonds had been actually authorized by a three-fifths 
vote. It is conceded by appellant that no statutory pro- 
vision has been made for any contest of an election of this 
character, after canvass by the board of directors. Re- 



142 NICHOLS T. SCHOOL mSTRICT. 

Opinion Per Cbow, J. [39 Wasb. 

spondents contend that the action of such board is final, 
relying upon the authority of Parmeter v. Bourne, 8 Wash. 
45, 35 Pac. 586, 757, and Heffner v. County Conies, 16 
Wash. 273, 47 Pac. 430. 

In Parmeter v. Bourne, supra, it appears that, at the gen- 
eral election held in November, 1892, there had been sub- 
mitted to the electors of Pacific county a proposition to 
remove the county seat from Oysterville to South Bend; 
that afterwards the votes had been canvassed by the board 
of county commissioners, and that said board had declared 
said county seat to have beeai removed from Oysterville to 
South Bend. The appellant, a citizen and taxpayer of 
Oysterville, brought action to vacate the order of the county 
commissioners, and to obtain an injunction restraining the 
defendants from removing the public records. This court 
held, in substance, that the superior court had no juris- 
diction of the subject-matter of the action which sought to 
enjoin such removal, for the reason that the action of the 
board of canvassers in declaring the result of said election 
was final, no contest being provided for by statute. 

In Krieschel v. County Com'rs, 12 Wash. 428, 41 Pac. 
186, the facts show that, at the general election held in 
November, 1894, a proposition was submitted to the voters 
of Snohomish county to remove the county seat from Sno- 
homish to Everett; that, after the election was held, the 
board of county commissioners, without having actually can- 
vassed the vote, declared the city of Everett to be the county 
seat from and after January 1, 1895. Erieschel, a tax- 
payer, commenced the action to enjoin the removal of said 
county seat, and Anders, J., in writing the opinion, dis- 
tinguished the case of Parmeter v. Bourne, for the reason 
that in the Snohomish case it appeared that the board, as 
a matter of fact, had not met as a board of canvassecrs and 
discharged its duties as required by law, and that for said 
reason a court of equity could interfere and enjoin, such 
removal. Afterwards, however, the board of county com- 



NICHOLS V. SCHOOL DISTRICT. 143 

July 1905] Opinion Per Cbow, J. 

missioners did meet as a canvassing board, and did canvass 
said returns, and in so doing refused to count certain votes 
cast in Port Gardner in favor of removal, and also refused 
to count two hundred votes returned from South Snohomish 
against removaL After canvassing the returns, the board 
declared Everett to have been chosen as county seat, and 
again adopted a resolution providing for such removaL To 
prevent this removal, the action reported in Heffner v. County 
Com'rs, supra, was instituted, and in that case this court, 
following Parmeter v. Bourne, again held that, as the board 
had met and canvassed the vote and had discharged its 
duties, its action was final, and a court of equity could not 
interfere by injunction. 

As above stated, respondents herein rely upon these au- 
thorities in support of their proposition that the action of 
the canvassing board was final. Appellant, however, con- 
tends that a distinction exists between this case and said 
eases from Pacific and Snohomish counties^ for the reason 
that the questions there submitted at said election were 
political in their character whereas the questions here sub- 
mitted were not political, but called for the incurring of 
indebtedness and imposing additional taxation. We do not 
pass upon the questioa as to whether there is any merit 
in this suggestion, but are of the opinion that, under the 
pecuKar facts of this case, the principles laid down in the 
cases above cited should apply, and that the action of the 
canvassing board herein is final We do not undertake to 
say that, in no instance could inquiry be made into the 
final action of a board of canvassers, upon an election of 
this character. It might be that> in cases of fraud, of 
utter failure to discharge duty, or of malfeasance, such in- 
quiry might be made by a court of equity, or by some 
proper proceeding instituted for the purpose of obtaining 
a review of the action of such board. An examination of 
the complaint shows that the appellant has utterly failed 
to all^e facts sufficient to constitute fraud, failure to dis- 



144 STATE V. MANN. 

Syllabus. [39 Wash. 

charge duty, or malfeasance in oflSce, upon the part of the 
board of directors herein when sitting as a canvassing board, 
and for this reason we think the action of the trial court 
in refusing to go behind their certificate was proper. 

Some question has been raised by the appellant herein 
as to whether the bonds actually carried by a three-fifths 
vote. Upon an examination of the record, we think it suffi- 
ciently appears that the necessary vote was obtained upon 
all propositions declared to have been carried. 

We find no error in the record, and the judgment is 
affirmed. 

Mount, C. J., Root, Hadley, Fullbbton, and Dunbab, 
JJ., concur. 



(No. 6649. Decided July 10, 1906.) 

The State of Washington, Respondent, v. John Manv, 

Appellant} 

Criminal Law — ^Tbial — ^Witnesses — ^Exclusion ov OoDsnofDANT 
From Room. The exclusion from the court room of one Jointly 
informed against with defendant, together with all other witnesses 
whose names were indorsed as witnesses for the state, is not preju- 
dicial error, where, upon the conclusion of the opening statement 
of the prosecuting attorney, such codefendant was permitted to re- 
turn and remained throughout the trial, and there is no claim that 
prejudice resulted. 

Cbiminai. Law — ^Joint CJomplaint Against Husrand and Wife — 
CJoNSPiBACT — Arson — Information — Sufficiency. The information 
charging the defendant with aiding and abetting his wife in the 
commission of arson, is not insufficient in that it attempts to charge 
a conspiracy by a husband and wife, since it charges a consummated 
offense and not a conspiracy to commit an offense. 

Evidence — Best and Secx)ndary. Oral evidence of the contents 
of an insurance policy is admissible when the policy is in the pos- 
session of the accused and on demand he fails to produce it, although 
the witness made a record of its contents and was compelled to 
refer thereto to refresh his memory. 

iReported in 81 Pac 661. 



STATE V. MANN. 145 

July 1905] Syllabus. 

Trial — ^Evidei7ce — Cboss-Examination op Wititess. It is improper 
to ask upon cross-examination if the witness is not the "notorious 
R who was tarred and feathered at G." 

Criminal Law — ^Arson — ^Evidence — Shippiko Goods From Build- 
INO — Time — ^Remoteness. Upon a prosecution for arson, evidence 
that the accused shipped merchandise from the building, five and 
seven days before the fire, is admissible to show motive and to con- 
nect the accused with the crime, its remoteness in point of time 
only lessening its force. 

Criminal Law — ^Evidencb — ^Admissions — ^Voluntary. Evidence of 
admissions made by the accused to officers while in custody are 
admissible without a direct statement that they were not made 
under the influence of fear produced by threats, when it appears 
from all that occurred that they were voluntarily made. 

Criminal Law — ^EviDENCfE — ^Admissions — Conspiracy. Upon a pros- 
ecution of a husband and wife for a consummated oftense of arson, 
admissions of the wife, implicating the husband, are not objection- 
able as an admission of one conspirator made after the conspiracy 
is at an end, since the rules relating to conspiracy have no appli- 
cation. 

Same — ^Principal and Accessory — ^Admissions — ^By Principal. In 
a separate prosecution of a husband as accessory to the crime of 
arson committed by his wife, admissions made by the wife impli- 
cating him are admissible in evidence, if they would have been 
competent against her, since it Is incumbent on the state to prove 
her guilt 

Same — ^Husband and Wife — Privileged Communications. Such 
admissions are not objectionable as permitting the wife to testify 
against the husband, voluntary confessions not being within the 
rule of privlledged communications. 

Appeal — ^Review — Harmless Error. Error in the admissioii of a 
letter in evidence is harmless, when its contents had been previously 
testified to without objection. 

Appeal—Review — ^Verdict. The weight and credibility of the evi- 
dence is entirely for the Jury and trial Judge, and their decision 
Is conclusive on the supreme court. 

Trial — Comment on Evidence. It is not unlawful comment on 
the evidence, within the meaning of the constitution, for the trial 
Judge, upon ruling on the admissions of evidence, to reply to sug- 
gestions of counsel, respecting the value of reputation, that it may 
be lost In a minute. 

10—89 WASH. 



146 STATB Y. MANN. 

Opinion Per Fullebtoit, J. [39 Wash. 

Appeal from a judgment of the superior court for Lewis 
county, Chapman, J., entered October 31, 1904, upon a 
trial and conviction of the crime of arson. Affirmed. 

Frank Burch and Oeorge E. Rhodes, for appellant. 
/. B. Buxton and C. H. Forney, for respondent. 

FuLLEBTON, J. — The appellant and one Nettie Mann were 
jointly informed against for the crime of arson, the charg- 
ing part of the information being as follows: 

^'She, the said Nettie Mann, in Lewis county, state of 
Washington, on to wit: the 17 day of August, A. D. 1904, 
and witiiin three years prior to the filing of this informa- 
tion, in the county of Lewis^ state of Washington, did thea 
and theire feloniously, unlawfully, wilfully and maliciously 
set fire to and bum that certain two story house building 
situate in the city of Centralia, Lewis county, Washington, 
the property of others, to wit: Thomas Cooling and Sarah 
Cooling: said two story house building being then and there 
occupied by the said Nettie Mann and John Mann, and he^ 
the said John Mann, though not personally present at the 
time said building was fired, did in manner and form afore- 
said, unlawfulUy, feloniously, wilfully and maliciously pro- 
cure, aid, counsel, incite, command and abet the said Nettie 
Mann to so unlawfully, feloniously, wilfully and maliciously 
fire and bum the said two story building, contrary," etc 

On being arraigned, the accused pleaded not guilty, and 
demanded separate trials, which were granted them by the 
court. The state elected to try the appellant first, and his 
trial resulted in a verdict and judgment of guilty, from 
which he appeals to this court 

Taking up the errors assigned in the order they are dis- 
cussed in the brief of appellant, the first to be noticed is 
the contention that the court erred in excluding Nettie Mann 
from the court room, during ihe opening statement to the 
jury made by the prosecuting attorney. From the record it 
appears that, after the jury had been impaneled and sworn, 
the prosecuting attorney moved that all of the witnesses, 



STATE V. MANN. 147 

July 1905] Opinion Per Follebton, J. 

both for the state and for the defendant, be excluded from 
the court room during the trial. Among the witnesses for 
the state whose names were indorsed on the information was 
Xettie Mann. The appellant's counsel called attention to 
this fact, and asked that the rule of exclusion be so modi- 
fied as not to include her. After some colloquy between 
the appellant's counsel and the court, the court stated, al- 
though no objection to her remaining was made on the part 
of the state's counsel, that the rule applied to her as well 
as to all of the other witnesses, and she was taken from the 
court room by the oflScers who had her in charge, she being 
then in custody. The prosecuting attorney thereupon made 
his opening statement to the jury, at the conclusion of which 
the court announced that, in view of the opening statement, 
he would modify his ruling in regard to the exclusion of wit- 
nesses, in so far as to permit Nettie Mann to be present in 
the court room during the trial, if she so desired. She 
was then brought into the court room, and the trial was pro- 
ceeded with by the introduction of testimony on the part of 
the state. 

This is ail that the record shows regarding the matter, 
but the appellant says that the purpose of the prosecuting 
attorney in indorsing the name of Mrs. Mann on the in- 
formation was to enable him to invoke the rule of exclusion 
against her, and thus deprive him of the benefit of her as- 
sistance while on his trial; and he argues that this court 
ought to set its seal of disapproval on such conduct by re- 
fusing to permit a conviction to stand where such a course 
has been pursued. But we are unable to find in the record 
anything which justifies this animadversion on the prose- 
cuting attorney. His conduct seems to us in nowise blam- 
abla He did not insist that the witness be excluded, nor 
did he debate the question, but left it entirely to the dis- 
cretion of the trial court on the reasons urged by the ap- 
pellant's counsel. He not only had the right to indorse 
the name of Mrs. Mann on the information, but, if he be- 



148 STATE V. MANN. 

Opinion Per Fullebton, J. [39 Wash. 

lieved that she would prove a material witness for the state, 
it was his duty to do so. There can be^ therefore, no ground 
for the claim that the appellant was prejudiced by the con- 
duct of the prosecuting oflScer. Nor was the ruling other- 
wise erroneous. Whether or not any particular witness shall 
remain in the court room pending the trial of a criminal 
cause, reets in the sound discretion of the trial court, to 
be reviewed only for an abuse of such discretion. Here, it 
is not even claimed that the appellant was in any manner 
prejudiced by the action of the court, and it is idle to say 
that such action is ground for revereal. 

It is next assigned that the court erred in refusing to 
sustain the appellant's objection to the introduction of any 
evidence by the state, on the ground that the information 
did not state facts sufficient to constitute a crime. The 
objection to the information is that it necessarily charges a 
conspiracy, and that^ as the defendants were shown to be 
husband and wife, they could not be guilty of a conspiracy. 
But we think the appellant is mistaken as to the charge 
contained in the information. The information charges a 
consummated offense, not a conspiracy to commit an offensa 
And while it may be true that a husband and wife cannot 
be convicted of having conspired together to commit an 
offense, yet if they commit an indictable offense, although 
the offense is the result of a conspiracy on their part, they 
can be tried and convicted for the consummated offensa 

A Mr. Drummond, while on the witness stand for the 
state^ was asked concerning a certain insurance ]X)licy issued 
on the goods of the appellant, and testified to the effect that 
he had issued a policy on sudi goods as agent of a Xew 
Hampshire company, and that he had kept a record of the 
policy, as was his custom. He was then asked if he oould 
state, independently of his record, how the insurance was 
divided on the different articles insured. On answering 
that he could, he was told to so state. To this the appellant 
objected on the ground that the record he had kept of the 



STATE V. MANN. 149 

July 1905] Opinion Per Pullebton, J. 

policy was the beet evidence. The court overruled the objec- 
tion, and permitted the witness to answer. This ruling is 
assigned as error. As this question called for the contents 
of the insurance policy, it is plain that, as between the 
witness' memory of what it contained and the memoranda 
of its contents made by him, his memory was the best evi- 
dence, even though he had been compelled to use his memo- 
randa to refresh his memory. But perhaps the real objection 
is that the policy itself furnishes the best evidence of its 
contents. If, however, we concede that this objection was 
made, it does not follow that it was error to admit the evi- 
dence. The policy was in the possession of the appellant^ 
and secondary evidence of its contents was admissible, after 
he had been served with notice to produce it and had failed 
to do so. State v. McCauley, 17 Wash. 88, 49 Pac. 221, 
61 Pac 382. 

During the cross-examination of witness Ehodes, he was 
asked the following question: "Are you not the notorious 
Tuck Khodes who was tarred and feathered at Grays Harbor 
and run out of the country?" To this question the state 
interposed an objection, which was sustained by the trial 
court There was no error in the court's ruling. While 
the latitude permitted a cross-examiner is extensive, it has 
its limitations. We think it would be too much to say that 
its bounds extended to questions of this character. 

The state was permitted to show, over the objection of the 
appellant, that the appellant caused to be shipped by rail, 
from the city of Centralia to the city of Tacoma, certain 
trunks and boxes, which were found to contain merchandise 
taken from the building which was afterwards burned. Cer- 
tain of these shipments were made some seven days before 
the fire occurred, and certain others some five days before 
that time, and it is urged that these times were too remote 
from the time of the fire to render the testimony admissible. 
But we think the objection unfounded. The evidence was 
admissible as tending to show motive, and to connect the 



150 STATE V. MANN. 

Opinion Per Fullbbion, J. [39 Wash. 

appellant with the crime charged. The remoteness of the 
removal of the goods from the time of the fire mi^t tend to 
lessen its probative effect, but that was a question for the 
jury ; it did not tend to render the evidence itself inadmissible. 

The court permitted the state to show certain inculpatory 
statements made by the appellant, concerning the crime 
charged against him, to the oflBcers who had him in custody. 
It is alleged that this was error, because it was not shown 
that the appellant was not under the influence of fear pro- 
duced by threats when he made them. But we think counsel 
mistakes the evidence. The witness testifying to the state- 
ments purported to state all that occurred at the time the 
admissions were made, and from the whole of his evidence 
it is made clear that the stateanents were voluntarily made. 
The question whether a defendant is under the influence of 
fear produced by threats, when he makes statements imput- 
ing guilt of the crime charged against him, is a mixed ques- 
tion of law and fact, and the proper way to ascertain the 
fact is to have the witness detail the circumstances surround- 
ing their making, and all that was said and done preliminary 
thereto which led to their making. From this the court is 
much better able to judge whether the admissions are ad- 
missible under the statutory rule than it would be were a 
question asked in the words of the statute and the opinion 
of the witness taken thereon. 

Subsequent to the commission of the offense charged in 
the information, Xettie Mann made certain confessions and 
admissions with reference thereto which tended to incrim- 
inate both herself and the appellant. These were admitted 
in evidence, over the objection of the appellant, and their 
admission is assigned here as error. Several reasons are 
urged against the admissibility of these confessions, but we 
shall notice but two of them. The first is that the confes- 
sion of one conspirator, made after the conspiracy has come 
to an end, cannot be given in evidence as against a joint 
conspirator. A long list of cases ia cited in support of this 



STATE V. MANN. 151 

July 1906] Opinion Per Fullebton, J. 

contentioiiy and, uiidoiibtedly, the nde is correctly stated on 
the case assumed by the appellant But, as we have before 
pointed out, the appellant was informed against and tried 
for a consummated offense, not for conspiring with another 
or others to commit an offense, and the rules applicable to 
the admission and introduction of evidence in the one case 
are not the same as they are in the other. A criminal con- 
spiracy is a combination between two or more persons to 
do a criminal or an unlawful act, or a lawful act by criminal 
or unlawful means. No overt act is necessary to constitute 
the offense, the gist of the offense being the unlawful con- 
spiring together. Hence, in the case at bar, had the charge 
against the appellant been for engaging in an unlawful con- 
spiracy only, he could well say that the subsequent confer 
sions and admissions of one of the conspirators were not 
admissible as evidence against him. But here the person 
whom he now assumes to be a joint conspirator was charged 
with the commission of a substantive offense, namely, the 
crime of arson, and the appellant was charged with aiding 
and abetting her in the commission of that crime. In order 
to convict the appellant it was necessary for the state to 
prove the crime as alleged; that is to say, it must show, 
first, that Nettie Mann committed the crime of arson ; and, 
second, that the appellant aided and abetted her therein. 
The state, in order to prove the first of the requisites, could 
resort to any evidence which would have been admissible 
had Xettie Mann herself been upon trial. This would in- 
clude her confessions and admissions, as well as any other 
competent evidence tending to prove the crime as laid. 

But it is thought the confessions were inadmissible be- 
cause they implicated the appellant Such is not the rule. 
The jury are ordinarily entitled to confessions as thev are 
made, and in this case to have eliminated from the confes- 
sions all references to the appellant would have left them 
unintelligible and incompetent for any purpose. The au- 
thorities, so far as we have been permitted to examine them. 



162 STATE V. MANN. 

Opinion Per Fullebton, J. [39 Wash. 

uniformly hold that the acts, declarations, and confessions 
of the principal are admissible as evidence on the separate 
trial of the accessory. Mr. Wharton lays down the rule 
as follows: 

"As at common law the conviction of the principal is a 
condition precedent to the conviction of the accessary, it 
is necessary, on the trial of the accessary, to put in evi- 
dence the record of the conviction of the principal. This 
record is, however, only prima facie proof of the guilt of 
the principal; and may be impeached by proof that such 
conviction was erroneous. Judgment must have been en- 
tered on the verdict to make the record admissible. The 
burden of proving that the principal was not guilty is on 
the accessary, but the accessary is not restricted to proof 
of facts shown on the former trial. On the other hand, 
it is admissible for the prosecution to put in evidence facts 
tending to show the principal's guilt. In most jurisdictions 
proof of such conviction is by statute no longer necessary 
in order to convict the accomplice or accessary." Wharton, 
Criminal Evidence, § 603. 

In Smith v. State, 46 Ga. 298, it was held that the con- 
fessions of the principal felon, as to his own guilt, are 
competent evidence to show that fact on the trial of the 
accessory, if they would have been competent had the prin- 
cipal been on trial. In Self v. State, 6 Baxter (Tenn.) 244, 
it was said that, upon the trial of an accessory before the 
fact, the principal not having yet been convicted, it de- 
volved upon the state to prove that the principal was guilty 
of the crime charged, as a necessary prerequisite to the con- 
viction of the defendant, and that any evidence was compe- 
tent for tliat purpose that would have been competent had 
the principal been on trial. To the same effect is Oivens v. 
State, 103 Tenn. 648, 65 St W- 1107. In the latter case 
the court said: 

"Many errors are assigned upon the action of the lower 
court in admitting or excluding testimony. Of these errors 
the larger and altogether the greatest number are predicated 
upon the idea that the second count in the indictment, charg- 



STATE V. MANN. 153 

July 1905] Opinion Per Fullebton, J. 

ing Givens with being an accessary before the f act^ was not 
good, and should have been quashed. Having, however, held 
that this count was good, these objections are necessarily 
removed. For all the testimony which \i^ould have been 
competent to show Dawn, as principal, guilty of murder, 
if he had been on trial, was equally competent against 
Givens, thus charged as being accessory before the fact 
Dawn, the principal, had already been tried and convicted. 
In such a case the rule is well settled that when afterwards 
the accessory before the fact is put on trial the proceedings 
are to be conducted as if the principal was again on trial, 
and the case against the accessory will not be gone into until 
the case against the principal is established. Self v. State, 
6 Bax., 244. Under this rule confessions of Dawn, though 
not made in the presence of Givens, under the second coimt 
were competent, not to fix guilt on plaintiff in error, but to 
show the guilt of Dawn and the grade of his offense. Self 
V. State, 8upra;Morrow v. State, 14 Lea, 484; Wharton's 
Crim. Ev., Sec. 702; 2 Bishop on Grim. Procedure, 
Sec 13." 

The appellant was, of course^ entitled to have his rights 
safeguarded by cautions during the course of the trial and 
by the instructions of the court to the jury, but no complaint 
is made that the court was delinquent in this respect, and 
the record aflSrmatively shows that it was not. 

It is next urged that these confessions were inadmissible 
because it was shown that Nettie Mann was the wife of the 
appellant, and that to admit her confessions in evidence was 
to permit the wife to testify against her husband, contrary 
to the prohibition contained in the statute. But we think 
this objection is without merit. Voluntary confessions are 
not within the rule- of privileged communications. 

A witness for the state was cross-examined concerning 
her feelings towards the appellant, and stated, in effect, that 
she disliked him. On her redirect examination she was 
asked to state the reason for her dislike, and answered that 
she had received a letter from him making certain state- 
ments and, without objection on the part of the appellant. 



/ 



154 STATE y. MANN. 

Opinion Per Fduxkton, J. [39 Wash. 

repeated them to the jury. She was then asked to produce 
the letter and did so, whereupon the state was permitted to 
put it in evidence over the objection of the appellant It 
is contended, we think correctly enough, that the letter was 
inadmissible^ but we do not think it reversible error. Its 
contents had been stated by the witness without objection, 
and the prejudice produced thereby, if any, oould not have 
been enhanced by reading the letter. 

It is next contended that the court erred in overruling 
the appellant's motion for nonsuit, and his challenge to the 
suflSciency of the evidence. But a perusal of the record 
convinces us that there was abundant evidence to sustain the 
verdict, and this is as far as we have any right to go into 
the question. The weight and credibility to be given the 
evidence is entirely for the jury and trial judge, and their 
findings thereon are conclusive here. 

Lastly, it is contended that the court commented on the 
evidence in violation of the prohibition in the constitution. 
The appellant called a witness who testified he had known 
the appellant at Tacoma, in 1886 or 1887. He was then 
asked concerning the appellant's general reputation for hon- 
esty and integrity at that time. This was objected to as 
being too remote^ whereupon the following colloquy occurred : 

"Mr. Burch: I think under this class of cases we have 
a right to go back as far as we can to show good reputation 
and then bring it down. The Court: It may go back, yes; 
but that is going back pretty far. Mr. Burch: Yes sir; 
but a reputation is not gained in a minute. The Court: 
That is true, but the trouble is it may be lost in a minute^ 
though. Well, I will overrule the objection and allow the 
testimony." 

The remark of the court to the effect that a reputati(m 
may be lost in a minute constitutes the comment complained 
of. We think, however, there was no error in the remark 
of the court Aside from the fact that the remark could 
hardly be said to be a comment on any testimony before 



ANDERSON v. TURATI. 155 

July 1905] Opinion Per Hadljct, J. 

the jury, it waa not addressed to the jury, but to ooiinsel, 
and we have held that remarks of the court as to facts in 
the case, addressed to counsel in reply to suggestions con- 
cerning the admission of testimony, are not comments on 
the facts, within the meaning of the constitution. State v. 
Surry, 23 Wash. 655, 63 Pac. 557. 

Our examination of the record convinces us that the ap- 
pellant had a fair and impartial trial, and that the judg- 
ment appealed from should be affirmed. It is so ordered. 

MouKT, C. J., Hadley, Cbow, and Duitbab, JJ., concur. 



(No. 5611. Decided July 14, 1906.) 



A. J. Andebson et al.. Respondents, v. Emanuel. Titbati 

et ah. Appellants} 

Taxation — Fobeclosubb — Jubisdiction — Process — RBQUisriES— 
Name of Owneb. A summons in foreclosure of a delinquency tax cer- 
tificate is defective and the Judgment is without Jurisdiction, where 
the name of the owner of record was stated in the tax rolls and in 
the certificate, and was not given in the summons, but the name of 
a stranger to the title was inserted instead; and the tax deed is 
properly cancelled where the court finds that the true owners had 
no actual knowledge of the pendency of the tax foreclosure. 

Appeal from a judgment of the superior court for Che^ 
halis county, Irwin, J., entered October 17, 1904, upon find- 
ings in favor of the plaintiffs, after a trial on the merits 
before the court without a jury, in. an action to set aside 
a tax dead« Affirmed. 

/. C. Cross, for appellants. 
John C. Hogan, for respondents. 

Hadlet, J. — This action was brought to effect a can- 
cellation of a tax deed which was issued by the treasurer 
of Chehalis county to the defendants in the cause. The 
plaintiffs being in possession of the land, allege that the 

1 Reported in 81 Pac. 657. 



40 m 



/ 



166 ANDERSON v. TURATI. 

Opinion Per Hadlet, J. [39 Wash. 

existence of the deed casts a cloud upon their title, and they 
ask that it be removed. They tendered and brought into 
court the necessary amount of taxes and costs represented 
by the tax deed. After a trial, the court granted the relief 
asked, and entered judgment setting aside the tax deed and 
removing the cloud thereof. The defendants have appealed. 
It is contended by respondents that the court was without 
jurisdiction to render the judgment in the tax foreclosure 
proceeding under which the deed issued. The foreclosure 
was upon a certificate of delinquency for the taxes for the 
years 1896 to 1900 inclusive. The property was assessed 
for those years in the name of Samuel Benn as owner. The 
certificate of delinquency so stated upon its face. The ap- 
plication for judgment in the foreclosure suit also expressly 
stated that the property was assessed to Samuel Benn. Benn 
conveyed the property to one Decker. The latter and his 
wife conveyed to the respondents Anderson^ and Anderson 
and wife entered into an executory contract to convey to 
the respondents McFadden. The deed from Benn to Decker 
was not of record when the foreclosure suit was begun, and 
although in existence it had not in fact been delivered at 
that tima The other conveyance, and the contract above 
mentioned, were executed after the tax deed, and are men- 
tioned merely to show the present interest of respondents in 
this suit. Benn was the holder of the legal title in fact, 
when the foreclosure was begun, and was also described as 
owner in the tax records and certificate, but appellants did 
not make him a party to the foreclosure suit. The summons 
was directed as follows: 

"The State of Washington to Jacob Kraber and Mary 
Doe Kraber, his wife, and all persons imknown, if any, 
having or claiming to have an interest in and to the r«il 
property hereinafter described." 

The summons not only omitted to include the name of 
the owner, as shown by the tax records, but the persons 
actually named therein were entire strangers to the title. 



ANDERSON v. TURATI. 157 

July 1905] Opinion Per Haolet, J. 

having no interest in it whatever. The respondents, both by 
the complaint and evidence, tendered the issue that the sum- 
mons was so made with the fraudulent intent of misleading 
the real owner; but we need not discuss that matter, inas- 
much as we think the summons was insufficient without any- 
actual fraudulent intention on the part of appellants. The 
statute. Laws 1901, p. 384, requires that the summons shall 
contain the name of the owner, if known. We said in Will- 
iams V, Pittock, 35 Wash. 271, 77 Pac. 385, that, when the 
property has been assessed to an unknown owner, and when 
a certificate of delinquency has been so issued, the fore- 
closure may be had in form against an unknown owner. • B\it 
we did not say that the name of an owner, as actually 
mentioned in the tax rolls and certificate of delinquency, 
may be omitted from the summons. Upon the contrary, 
as care was taken in that case to name in the summons 
the persons whose names appeared upon the tax records as 
owners, we stated that good faith was exercised, and that 
no more was required by way of investigating the subject 
of ownership. 

We think the name of the owner described in the tax rolls 
and certificate of delinquency should be included in the 
summons, and that it is defective without it. Such omis- 
sion may mislead, to the prejudice of owners and their 
grantees, as is claimed to have been true in this case. In 
the summons before us, the name of the tax record owner 
was omitted, and those of entire strangers to the title were 
inserted. It would have been difficult to prepare a summons 
more misleading in its terms. The court found that neither 
the tax record owner nor his grantees had any actual knowl- 
edge of the pendency of the foreclosure proceeding. The 
insertion of the name of the tax record owner would have 
brought at least constructive, if not actual, knowledge to 
him, and his grantees would have been chargeable therewith. 
We think, therefore, that the court was without jurisdiction 
to render the foreclosure judgment, that the subsequent tax 



89 US8 



168 HARRIS V. LEVY. 

Opinion Per Hadlet» J. [39 Wash. 

deed was issaed without l^al authority, and that the judg^ 
ment in this action which cancelled the deed was right. The 
judgment is affirmed. 

Mount, C. J., Fullebton, Ckow, Eudkik, Root, and 
DrNBAB, JJ., concur. 



(No. K03. Decided July 14, 1906.) 

Pluma M. Habbis^ Appellant, v. Annie Levy ei ah, 

Respondents} 

Taxation — Fobeclosttre — ^Appeal — ^Time fob Taking. Laws 1903, 
§ 4, proYldlng that an appeal from a judgment In a tax lien fore- 
closure shall be taken within thirty days, applies to a Judgment 
dismissing the action. 

Appeal from a judgment of the superior court for King 
county. Bell, J., entered June 20, 1904, after vacating a 
default judgment, dismissing an action to foreclose a t&s 
lien, upon denying a motion to require the defendants to 
answer. Appeal dismissed. 

E. F, Kienstra, for appellant. 

O. E. de Steiguer and R. R. George, for respondents. 

Hadley, J. — This action was instituted to foreclose a 
general tax lien. On the 7th day of October, 1903, a decree 
of foreclosure was entered, upon the default of the defend- 
ants. A tax deed was issued in pursuance thereof. There- 
after the defendants moved to vacate the decree and for 
the cancellation of the deed, for permission to pay the taxes 
and costs, and for restitution of the property. This motion 
was granted, by an order entered December 11, 1903. On 
the 10th day of March, 1904, the plaintiff appealed from 
the last named order. Said appeal was dismissed by this 
court on the 27th day of May, 1904. Thereafter the plain- 

1 Reported In 81 Pac. 550. 



HARRIS V. LEVY. 159 

July 1905] Opinion Per Hadlet, J. 

tiff moved the superior court for an order requiring the 
defendants to answer the complaint in the cause. This 
motion was denied, by an order entered June 14, 1904, and 
by the same order the court dismissed the action. The order 
recites that the defendants had, with their motion to vacate 
the judgment, paid into court the full amount of plaintiff's 
claim^ taxes, interest and costs. This appeal is prosecuted 
by the plaintiff from the last mentioned order. 

Kespondents have moved to dismiss the appeal and, among 
other grounds, they urge that the appeal was not taken in 
time. The notice of appeal was served September 9, 1904, 
being eighty-seven days after the entry of the order. This 
cause is prosecuted as a special proceeding under the statute 
authorizing foreclosure of tax liens. Chapter 59 of the 
session laws of 1903, § 4, outlines the necessary procedure 
for appeal in such cases. It is provided that the appeal 
shall be taken within thirty days after the rendition of the 
judgment. This court has already construed the statute 
to mean that said period applies not alone to the judgment 
of foreclosure, but to other judgments of final effect in the 
action. Brovm v. Davis, 36 Wash. 135, 78 Pac. 779 ; Pedigo 
V. Fuller, 37 Wash. 529, 79 Pac. 1129. The judgment of 
dismissal was a final determination of the case against ap- 
pellant, and her appeal should have been taken within thirty 
days. The appeal is therefore dismissed. 

Mount, C. J., Ckow, Kudkin, and Dunbae, JJ., concur. 



160 IN RE BROWN. 

Citations of GounBel. [39 Wash. 



(No. 5723. Decided July 14. 1906.) 

In the Matter of the Application of Thomas Beowh^ for a 

Writ of Habeas Corptis} 

Insane Persons — ^Acquittal of Crime on Ground of Insanity — 
Imprisonment — Constitutional Law— Due Process of Law — ^Pre- 
sumptions. One accused of murder, who submits a plea of insanity 
to trial by jury and Is found not guilty by reason of Insanity, may 
be confined in the county Jail until the further order of the court, 
conformably to Bal. Code, § 6959, and is not deprived of his liberty 
without due process of law where he does not allege a restoration 
of sanity; since he was duly accorded a fair trial, and the pre- 
sumption of insanity, once found, continues; and since the law does 
not prevent a Judicial investigation as to restored sanity. 

Same — Crxtel Punishment. The state has power to protect Its 
people from dangerous insane persons by providing, after a full hear- 
ing, for their confinement in a prison while the condition continues, 
and such confinement does not violate the constitutional inhibition 
of cruel punishment. 

Same — Judgment — Certainty. An order for the confinement of 
a dangerous insane person until the further order of the court is 
not void for uncertainty, the order being subject to modification 
upon application. 

Application filed in the supreme court June 13, 1905, for 
a writ of habeas corpus, on behalf of a petitioner confined 
under an order of the superior court for Lewis, county, Rice^ 
J., entered May 9, 1905. Writ denied. 

Maurice A. Langhorne and C. H. Forney, for petitioner. 
Bal. Code, § 6959, is in conflict with the fourteenth amend- 
ment of the federal constitution. State ex reL Blaisdell v. 
Billings, 55 Minn. 467, 57 N. W. 206, 794, 43 Am. St 
524; Doyle, Petitioner, 16 R. I. 537, 18 Atl. 159, 27 Am. 
St. 759; Underwood v. People, 32 Mich. 1, 20 Am. Rep- 
633; Cooley, Torts (2d ed.), p. 206, note 1. Due process 
of law applied to judicial proceedings, requires due regard 
to established rules and fundamental principles of law^ and 

1 Reported in 81 Pac. 552. 



IN RE BRO^T^. 161 

July 1905] Citations of Counsel. 

proceedings regular and appropriate to the questions in- 
volved. Penvoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565 ; 
Eees V. Watertoiun, 19 Wall. 107, 22 L. Ed. 72 ; Ex Parte 
Macdonald, 76 Ala. 603 ; Parsons v. Russell, 11 Mich. 113, 
83 Am. Dec. 728; 10 Am. & Eng. Ency. Law (2 ed.), 296, 
301 ; Trustees of Oriswold College v. Davenport, 65 Iowa 
633, 22 K W. 904 ; In re Ah Lee, 5 Fed. 899. In a criiuinal 
oaSe, the offense must be described in an accusation, the 
accused must have his day in court and a trial with plead- 
ings, practice, and evidence according to established proce- 
dure, before a competent court, and authority for every step 
must be found in the law of the land. 10 Am. & Eng. Ency. 
Law (2d ed.), 303, 304; Hood v. State, 44 Ala. 81; Tiede- 
man. State & Fed. Control, pp. 128, 131. These principles 
likewise apply to insanity proceedings. 16 Am. & Eng. 
Ency. Law (2d ed.), 599, 600; Hovey v. Elliott, 167 U. S. 
409, 17 Sup. Ct. 841, 42 L. Ed. 215; Crain v. United 
States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; 
Scott V. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 
896 ; Eddy v. People ex rel Eddy, 15 111. 386 ; Hathaway 
V, Clark, 5 Pick. 490; Conkey v. Kingman, 24 Pick. 115; 
Wait V. Maxwell, 5 Pick. 217, 16 Am. Dec. 391; State v. 
Byan, 70 Wis. 676, 36 K W. 823; In re Janes, 30 How. 
Pr. 446; M^Curry v. Hooper, 12 Ala. 823, 46 Am. Dec. 
280 ; Colby v. Jackson, 12 N. H. 526. Confinement without 
investigation assumes the insanity, the very question at 
issue. Van Dusen v. Newcomer, 40 Mich. 90. The fact of 
insanity must be found by a jury of inquiry. In re Bryant, 
3 Mackey (D. C.) 489; Commonwealth ex rel. Stewart v. 
Kirkhride, 2 Brewst. (Pa.) 419; Territory v. Sheriff, 6 
Mont. 297, 12 Pac. 662 ; State ex rel Kiel v. Baird, 47 Mo. 
301 ; Fiscus v. Turner, 125 Ind. 46, 24 K E. 662 ; De Hart 
V. Condit, 51 K J. Eq. 611, 28 Atl. 603, 40 Am. St. 545. 
A judgment of confinement "until the further order of 
court" is void. 15 Am. & Eng. Ency. Law (2d ed.), 180; 

11—89 WASH. 






182 IN RE BROWN. 

Opinion Per Haouct, J. [39 Waah. 

1 Bishop^ New Crim. Proc, § 1297; 21 Am. & Eng. Ency. 
Law (Ist e<L), 1073; Davis v. Catron, 22 Wash. 183, 60 
Pac, 131. The judge was without power to decide that the 
insanity existing at the time of the crime continued and was 
such at the time of the trial as to warrant imprisonment 
Kelleher v. Putnam, 60 N". H. 30, 49 Am. Eep. 304 ; BaL 
Code, S§ 2660-2680. 

/. R. Buxton and A. J. Falknor for respondent. Insanity 
once shown to exist is presumed to continue, and the burden 
of proving restoration to sanity is upon him who asserts it 
16 Am. & Eng. Ency. Law (2d ed.), 605; Sdiouler, Wills> 
p. 384, § 189; Cooley, Torts (2d ed.), p. 178. This rule 
applies in the case of acquittal of crime on the ground of 
insanity. United States v, Lawrence, Fed. Casw No. 15,577; 
Carr, Trial of Lunatics, pp. 75, 77; 1 Tiedeman, State & 
Fed. Control, p. 136; Commonwealth v. Meriam, 7 Mass. 
168; State v. Klinger, 46 Mo. 224; Clearfield County v. 
Cameron Township Poor DisL, 135 Pa. St 86, 19 Atl. 952. 

Hadley, J. — The petitioner made original application in 
this court for a writ of habeas corpus, directed to the sheriff 
of Lewis county. He asserts that he is imlawfuUy detained 
and imprisoned. His petition shows that he was regularly 
tried in the superior court of said county on the charge of 
murder in the first degree, to which charge he had inter- 
posed the plea of not guilty. The verdict returned was as 
follows : 

*^Woy the jury, find the defendant not guilty by reason 
of insanity." 

Immediately after the return of the verdict, on Xh& 1st 
day of May, 1905, the trial court ordered the sheriff to 
return the petitioner to tlie county jail, to await the further 
order of the court He was accordingly detained in jail 
until the 8th day of said month, when the trial judge ordered 



IN RE BROWN. 168 

July 1906] Opinion Per Hadlet, J. 

Lim to be brou^t into court. The petition alleges that the 
court thereupon, without any hearing or trial, and without 
giving the petitioner any opportunity to be heard in his own 
behalf, arbitrarily and of its own motion announced that> 
because of the verdict of the jury, which established that 
the petitioner was not guilty by reason of insanity, the court 
considered that his discharge and going at large would be 
manifestly dangerous to the peace and safety of the com- 
munity. It is further shown that, for the above reasons, 
an order was entered to the effect that the petitioner shall 
be, by the sheriff, confined in the county jail, until the 
further order of the court. 

The sheriff made return to the petition by way of answer. 
The answer avers that the petitioner was charged with mur- 
der in the first degree, for the killing of his father; ihat 
he pleaded and urged, as a defense to said charge, insanity 
caused by epilepsy, cruel treatment by his father^ and the 
degeneracy of the latter prior to the birth of the petitioner ; 
that he offered proof during the trial of continuous and 
permanent insanity from said causes^ and that his demeanor 
during the trial appeared to be consistent with his claim 
of general insanity. The above alleged facts are not con- 
troverted by the petitioner. 

The court acted on the authority of a statute of this state 
which is set forth in Bal. Code, § 6959. It is as follows: 

"When any person indicted or informed against for an 
offense shall, on trial, be acquitted by reason of insanity, 
the jury, in givingr their verdict of not guilty, shall state 
that it was given for such cause; and thereupon, if the dis- 
charge or going at large of such insane person shall be con- 
sidered by the court manifestly dangerous to the peace and 
safety of the community, the court may order him to be 
committed to prison, or may give him into the care of his 
friends, if they shall give bonds^ with surety to the satis 
faction of the court, conditioned that he shall be well and 
securely kept, otherwise he shall be discharged." 



164 IN RE BROWN. 

Opinion Per Hadley, J. [39 Wash. 

The petitioner contends that the statute violates the fol- 
lowing portion of the fourteenth amendment to the consti- 
tution of the TJnied States: 

". . . nor shall any state deprive any person of life> 
liberty, or property, without due process of law, nor deny 
to any person within its jurisdiction the equal protection of 
the laws." 

It is further insisted that the statute violates the follow- 
ing provisions of §§ 3, 14, 21, and 22, of art, 1 of our state 
constitution : 

"§ 3. Xo person shall be deprived of life, liberty, or 
property without due process of law. 

'^§ 14. Excessive bail shall not be required, excessive 
fines imposed, nor cruel punishment inflicted. 

"§ 21. The right of trial by jury shall remain invio- 
late, . . . 

*'§ 22. In criminal prosecutions, the accused shall have 
the right to appear and defend in person, and by counsel, 
to demand the nature and cause of the accusation against 
him, to have a copy thereof, to testify in his own behalf, 
to meet the witnesses against him face to face, to have com- 
pulsory process to compel the attendance of witnesses in his 
own behalf, to have a speedy public trial by an impartial 
jury of the county in which the offense is alleged to have 
been committed, and the right to appeal in all cases ; . . ." 

Has the petitioner been deprived of due process of law in 
the premises ? He was tried before a jury to whom he him- 
self submitted the issue that he was insane when the crime 
was committed. He was permitted to fully introduce his 
evidence upon that subject^ and the jury were instructed 
as to their duty in the premises. The verdict returned was 
in his favor upon the issue which he tendered, and he was 
therefore accorded due process of law and the right of trial 
by jury uix>n that subject. The jury found that he was 
insane, and it was the manifest duty of the court to enter 
some kind of a judgment upon the finding of the jury. The 
petitioner erroneously assumes that it was a judgment en- 



IN RE BROWN. 165 

July 1905] Opinion Per Hadlet, J. 

tered in a new and original proceeding, without due process 
of law and without opportunity for a hearing. It was, how- 
ever, a judgment rendered upon the verdict of a jury, which 
had been regularly returned in a proceeding wherein all 
constitutional rights had been accorded. Should it have 
been a judgment of discharge, according to petitioner his 
liberty? He does not allege that he is now sane. The 
solemn verdict of a jury, after due trial, establishes that 
he was insane when the killing occurred. The record b^ 
fore us shows that the character of insanity considered was 
not of a temporary sort, but was rather progressive and 
permanent in its nature^ by reason of epilepsy and congenital 
conditions. 

"The presumption being that general insanity once shown 
to exist still continues, unless of a temporary sort, like the 
delirium of drunkenness or a fever, the burden of proof to 
establish a lucid interval or mental restoration rests upon 
the party who asserts it" Schouler, Wills (3d ed.), § 189, 
and cases cited. 

In the chapter on the subject of Insanity, in 16 Am. & 
Eng. Ency. Law (2d ed.), under the discussion of the con- 
tinuance of insanity of a permanent nature, at page 604 of 
said volume, the following statement of the rule as to pre- 
sumption is made: 

"When habitual insanity in the mind of the person whose 
act is in question is once established, then the party who 
would take advantage of the fact of restoration to a sane 
condition or of an interval of reason must prove it^ for in- 
sanity of that character is presumed to continue until the 
contrary is shown." 

Decisions from twenty-six of the American states are 
cited in support of the above text, as well as a long list of 
English decisions. With such an array of citation, it would 
seem that the rule is well established, and that a review 
of the decisions is unnecessary. We have examined a num- 
ber of the authorities cited, and find that they fully sustain 



166 IN RB BROWN. 

Opinion Per Haolet, J. [39 Wash. 

the rule announced by the textwriter, that, when insanity 
of a permanent character is once established^ it is presumed 
to continue, and the presumption prevails until the contrary 
is shown^ the burden of showing which is upon him who 
asserts sanity. Therefore, inasmuch as it was a fact estab* 
lished after a full hearing that the petitioner was insane 
at the time of the homicide, the presumption is that the 
same condition continues, and the burden is upon him to 
show to the contrary. The record does not show that he 
has ever offered to make such showing to the court below, 
but rather that he demands his release as an absolute right 

We have thus seen that, as to the issue of insanity, the 
petitioner was accorded the constitutional rights of due 
process of law, trial by jury, and the privilege of appearing 
and presenting his case in person and by counsel. The addi- 
tional constitutional objection urged is that no cruel punish- 
ment shall be inflicted. The statute authorizes the court, 
among other tilings, to commit one acquitted by reason of 
insanity to prison. No particular prison is specified, and 
it may be reasonably inferred that any prison coming within 
the committing jurisdiction of the court trying the cause 
may be selected, such as the county jail of the proper county, 
or the state penitentiary. In this instance the commitment 
was to the county jail. 

May the state, in the exercise of its sovereignty and in 
its endeavor to protect its people from dangerous insane 
characters, provide for their confinement in a prison? It 
is the policy of the state to confine such persons, but it is 
ordinarily done in an sylum, and not in a prison, so-called. 
We know of no reason, however, why the state may not 
classify insane persons and require that those whose danger- 
ous tendencies have been manifested by the perpetration of 
acts inipei'iling the safety of the community shall, after a 
full hearing establishing the fact of insanity, be confined in 
prison while that condition continues. While confinement 
of any character may, in a sense, contain elements of cruelty, 



IN RB BROWN. 167 

July 1905] Opinion Per Hadlet, J. 

yet the safety of the people requires that such persons shall 
be confined. 

It is urged that the order of the court is void for uncer- 
tainty, in that it is indefinite as to time. The imprisonment 
is to continue until the further order of the court The 
order conforms to the statute in that particular. No time 
is specified in the statute for the duration of the imprison- 
ment. In the nature of the subject treated by the statute^ 
it must be so. It was the undoubted intention of the l^i&- 
lature that imprisonment shall not be continued after restora- 
tion to sanity, and that the court shall so retain control of 
its order in the premises that it may afterwards modify it 
to suit changed conditions of mind or body, as they may be 
made to appear. Such an order is analogous to one dispos- 
ing of the custody of the children in a divorce proceeding, 
which is made to continue until further order of the court, 
and subject to modification with changed conditions. Al- 
though the fact of insanity has been regularly established, 
and that condition is presumed to continue until the con- 
trary is shown, yot the petitioner has the undoubted right 
at any time to assert that he is restored to sanity, and to 
demand that the court shall duly investigate that subject. 
The statute in no way attempts to prevent such a demand 
upon his partj and cannot be held to be invalid on the ground 
that it prevents him from exercising such privilege. 

The petitioner cites Underwood v. People, 32 Mich. 1, in 
support of his contention against this legislation; but an 
examination of that case discloses that the Michigan statute 
provided that one acquitted on the ground of insanity should 
remain confined in an asylum until an investigation as to 
his restoration should be set in motion by the prison in- 
spectors. The court said : "It practically leaves the liberty 
of the person confined to depend upon the uncontrolled pleas- 
ure of the inspectors.^' Under that statute the prisoner 
could take no step on his own initiative, but was left en- 
tirely to the will of others. Such a provision manifestly 






168 AHRBNS V. SEATTLE. 

Syllabus. [39 Wash. 

violated a personal right. But our statute makes no sucb 
attempt to prevent the exercise of a fundamental privilege. 
The petitioner quotes extensively in his brief from a note 
in Cooley, Torts (2d ed.), pp. 206, 207. The quotation 
does not, however, conflict with our argument above that> 
with the presumption of insanity continuing, confinement 
is enforcible when the law does not attempt to prevent a 
judicial investigation as to restored sanity, and which may 
be initiated at the pleasure of the one confined. 

We find no constitutional objections to the statute, and 
the order of the court is in strict conformity with its pro- 
visions. For the foregoing reasons, we think the petitioner 
has not shown sufficient grounds for his discharge^ and the 
writ is denied. 

MouisTT, C. J., FuixEETON, Crow, Rudxin, Root, and 
Dunbar, JJ., concur. 



(No. 6213. Decided July 14, 1906.) 

E. H. Ahrens et ah, Appellafits, v. The City of Seattle, 

Respondent} 

Appeal — Bond — Ck)NDrnoNS. A bond on appeal conditioned for the 
payment of all costs and damages adjudged on the appeal and for 
the performance of any judgment, covers costs on the dismissal of 
the appeal, and is sufiOicient although not in the exact language of 
the statute. 

Same — Bond as Supersedeas — Amount — Appeal Fbom Assess- 
ment. Upon an appeal from a judgment confirming a municipal 
assessment and for $18.90 costs, in which the court fixed no amount 
for a supersedeas bond, a bond on appeal in the sum of $300, suffi- 
cient in form as an appeal bond, will give the supreme court juris- 
diction of the appeal, where it Is not conditioned to effect a stay, 
although it contains some of the recitals of an ordinary supersedeas 
bond, since it is a mere nullity in respect to the stay. 

Uteported in 81 Pac. 558. 



AHRENS V. SEATTLE, 169 

July 1905] Opinion Per Hadlet, J. 

Municipal Cobporationst-Assessments — Appeal Fbom Confiema- 
Tio:^ — ^Trial in Supebiob Court — ^New Evidenge. Upon appeal from 
a municipal assessment the appellant is entitled to a trial on new 
eyidence submitted by him, and is not confined to the record certi- 
fied from the city council. 

Appeal — Decision — Review of Special Assessment — Remand. 
Upon reyersing an order of the superior court, confirming a munici- 
I>al assessment, for error in excluding all evidence oftered, the 
supreme court is not confined to a correction of the assessment roll, 
but will remand the case to the superior court for a full trial on 
the evidence. 

Appeal from the judgment of the superior court for King 
county, Bell, J., entered March 3, 1904, in favor of the 
city, upon excluding all evidence offered, dismissing an 
appeal from a municipal assessment. Reversed. 

Shepard & Lyter, for appellants. 

Mitchell Qilliam, Hugh A. Tait, and Wm, Parmerlee 
(James B, Howe, of counsel), for respondent. 

Hadley, J. — At the time of the first oral argument on 
this appeal, respondent suggested that the appeal bond is 
defective, and orally moved to dismiss the appeal. Argu- 
ment was heard upon the subject, and the matter was taken 
under advisement. At the recent term of this court, another 
oral argument was heard, and the cause was submitted to 
the entire court as now constituted. The alleged defect in 
the appeal bond was not discussed at the time of the last 
oral argument. We do not understand, however, that re- 
spondent has abandoned its position in that matter, but 
rather that further discussion of it was omitted for the 
reason that the court may have indicated that it did not 
care to hear further argument on that subject. The defects 
suggested are, (1) that the bond does not contain the words 
"or on the dismissal thereof;" (2) that it is insufficient 
in amount to operate both as a supersedeas and a cost bond. 

With regard to the first point suggested, it does appear 
that the words above quoted from the statute are not in- 



170 AHRENS V. SEATTLE. 

Opinion Per Haduet, J. [39 Wash. 

eluded in the bond. It is, however, conditioned that ap- 
pellants will not only pay all costs and damages adjudged 
against them on the appeal, but that they will also perform 
any judgment or order that may be rendered against them 
by this court- A judgment for costs on the dismissal of the 
appeal would therefore be covered by the terms of the bond. 
It is suflScient to protect every right of respondent, and in 
such case the bond should not be held to be jurisdictionally 
defective for mere failure to use the exact words of the 
statute. Anderson v. Bigelow, 16 Wash. 198, 47 Pac. 426. 
Referring now to the second point urged under the motion, 
the record discloses that the appeal is not from a judgment 
for the recovery of money, but is from a judgment confirming 
a special assessment for local improvements, on appeal to 
the superior court from the city council of the city of Se- 
attle. It is therefore manifest that the judgment could 
not be stayed without an order of the court fixing an amoimt 
foi a supersedeas bond. The record neither discloses that 
the court ever fixed any amount, nor that appellant ever asked 
for such an order. The amount of the obligation stated in 
the bond as given is $300. While it' contains some of the 
recitals of an ordinary supersedeas bond, yet inasmuch as 
the necessary preliminary step to effect a stay of such a 
judgment was not taken, it could in no event have become 
a stay bond, regardless of the amount stated in it. Under 
such circumstances the bond is a mere nullity in respect 
to the stay, and from its own recitals we think it is also 
clear that it was not intended as a supersedeas bond. It 
limits liability to "all costa, etc, not exceeding in amount 
or value the above named original judgment besides costs 
on appeal." Liability is therefore limited merely to the 
judgment of $18.90 costs, the amount adjudged below, and 
to the costs on appeal. Thus it clearly appears that there 
was no intention to stay proceedings under the judgment 
confirming the assessment roll. The bond is sufficient in 
form and amount as an ordinary appeal bond, and anv sur^ 



AHRBNS V. SEATTLE. 171 

July 1905] Opinion Per Hadley, J. 

plus recitals ordinarily used in a stay bond are merely 
immaterial. King v. Branscheid, 32 Wash. 634, 73 Pao. 
668. The motion to dismiss the appeal is denied. 

Appellants are the owners of certain real estate in the city 
of Seattle, and the city sought to assess said property for 
the purpose of paying the costs and expenses of regrading 
Pike and East Pike streets. They filed with the city council 
written objections to the assessment roll. The objections 
were overruled, and the objectors appealed to the superior 
court When the matter came on for hearing in that court 
it was urged by the city that, in the consideration of the 
appeal, the superior court was restricted to matters appear- 
ing upon the face of the transcript certified by the city 
clerk. This view was adopted by the trial court, and all 
evidence oflFered in support of the objections to the assess- 
ment was rejected. Judgment was entered confirming the 
assessment roll, and from that judgment this appeal is prose- 
cuted. 

It is contended by appellants that the court erred in re- 
fusing to hear testimony on the appeal. This subject in- 
volves an examination of chapter 118 of the session laws 
of 1901 [Laws 1901, p 240], which is an act authorizing 
the levy and collection of special assessments for local im- 
provements in cities of the first cla^ Section 2 of the act 
provides for filing with the city council written objections 
to the assessment roll, and also that the decision of the council 
or other legislative body may be reveiwed by the superior 
court on appeal thereto. It is provided that the court shall 
hear and determine the appeal without a jury, and shall 
confirm, correct, modify, or annul the assessment, in so far as 
the same aflFects the property of the appellant. The superior 
court appears to have construed the statute as conferring 
upon that court only the ordinary review powers of an ap- 
pellate court, with no power to hear and consider evidence 
that was not heard by the subordinate tribunal and duly 
certified by it. 



172 * AHRENS V. SEATTLE. 

Opinicyi Per Hadlet, J. [39 Wash. 

We do not believe that such was the intention of the legisr- 
lature. If such were the case, a protestant would be com- 
pelled to fully and at length introduce his evidence before 
the city council, preserve the same, and take it to the 
superior court, or he could not secure a review upon the 
facts. The statute pro^ddes no method whereby a protestant 
can compel the attendance of an unwilling witness before 
the city council, and no other method is provided for obtain- 
ing his testimony. There is neither provision for adjnin- 
istering oaths to witnesses who may appear before the 
council, nor for certification to tlie superior court of any testi- 
mony taken. The statute specifies a copy of the notice of 
appeal, a transcript of the assessment roll, a copy of the 
objections filed with the city clerk, and of the order of the 
council confirming the assessment roll, as necessary to be 
certified on appeal, and then adds : "and the record of the 
council or other legislative body with reference to said assess- 
ment." The term *^record," as used, cannot reasonably be 
said to include the testimony, but ratlier refers to such record 
as the minutes of the proceedings of tlie council upon the 
subject. Doubtless the purpose of the written objections 
is to bring to tho attention of the council the fact that the 
correctness of the assessment is challenged, and the reasons 
therefor. An opportunity is thus given for further and more 
complete investigation by the council, if it shall be disposed 
to enter upon it. But the statute evidently did not con- 
template that a protestant can demand the hearing of testi- 
mony as a matter of right, together with a full and exhaustive 
investigation of a judicial nature before a nonjudicial body. 
That right should, however, be accorded him somewhere, and 
we tliink the statute contemplates that he shall have it in 
the superior court, a tribimal possessing all the necessary 
attributes and powers for judicial determination. When, 
therefore, an objector has properly, in writing, called the 
attention of the city council to his reasons for protesting 



AHRBNS V. SEATTLE. * J 73 

July 1905] Opinion Per Hadley, J. 

against the assessment, and has duly appealed, he is entitled 
to submit, and have considered on the appeal, all competent 
evidence he may offer in support of his objections. 

Certainly, much of the evidence offered, as disclosed by 
the statement of facts, was material and vital in support 
of the issues raised by the objections. The court did not 
undertake to pass upon its materiality or competency, but 
rejected all evidence for the reasons aforesaid. There are, 
therefore, no assigned errors before us for review as to the 
rejection of evidence for want of competency. The error 
of the court consisted in trying the case as a whole upon 
a wrong theory, and in view thereof it remains for us to 
consider what shall now be done with the case on this appeal. 

The statutQ authorizing the appeal to this court states as 
follows: "And the supreme court on such appeal may cor- 
rect, changei, modify, confirm, or annul the- assessment in 
so far as the same affects the property of the appellant" 
It does not follow, however, that no other power resides in 
this tribunal in such a ease as is now before us. The statute 
has in view a case which is fully here on appeal, so that 
intelligent action may be taken. This case is not so here, 
but it is not because of any fault of appellants^ and they 
should not be left without opportunity to submit their evi- 
dence and be heard thereon. The statute undoubtedly in- 
tends that this court shall review and determine the facts as 
well as the law questions involved and, in aid of our juris- 
diction to do so, we doubtless might remand the case for 
the taking of testimony to be returned here for our examina- 
tion. But we believe the whole case should be heard and 
determined by the superior court The determination of 
that court may put an end to the contest We therefore 
think the case should be remanded to the superior court, 
with instructions to vacate the judgment appealed from, 
and then proceed to a full trial and judgment upon all 
questions of law and fact involved, permitting the formal 
introduction of testimony, and hearing and determining the 



fa 



a? 



174 FISCHER V. KITTINGBR. 

Citations of CounseL [39 Wash. 

case as is done in equity causes. It is so ordered, and 
appellants shall recover their costs on this appeaL 

Mount, C. J., Fullertow, Crow, Rudkin, Root, and 
DuNBAB, JJ., concur. 



(No. 658S. Decided July 14. 1906.) 

G. W. Fischer et al.. Respondents, v. George B. Kittinger, 

Appellant} 

Judgments — ^Revival — Constitutional Law — Impaibment of Obli- 
gation OF Contract — Statutes — ^Validity of Pabt. Laws 1897, p. 52, 
repealing the statute authorizing the revival of judgments, being a 
uniform piece of legislation taking away all right of action upon 
all judgments, and void as impairing the obligation of the contract 
as respects prior judgments, is void as to sectioi^ 4, repealing the 
remedy of revival by notice and motion. 

Appeal from an order of the superior court for King 
county, Griffin, J., entered Xoveraber 17, 1904, reviving a 
judgment, upon motion of the judgment creditor. Affirmed. 

Hughes, McMicken, Dovell & Ramsey, and James Kiefer, 
for appellant, contended, among other things, that as long 
as tliere remained the remedy by action upon the judgment, 
it was competent for the legislature to repeal the remedy of 
revival by motion. Antoni v. Greenhow, 107 U. S. 769, 2 
Sup. Ct. 91, 27 L. Ed. 468 ; Sneed v. Tennessee, 96 U. S. 
69, 24 L. Ed. 610; Thayer v. Seavey, 11 Me. 284; Lord 
V. Chadbourne, 42 M& 429, 66 Am. Dec 290; Evans v. 
Montgomery, 4 W. &, S. (Pa.) 218; Von Baumhach v. Bade, 
9 Wis. 510; Morley v. Lahe Shore etc. R. Co., 146 U. S. 
162, 13 Sup. Ct 54, 36 L, Ed. 925; Cox v. Marlatt, 36 
X. J. L. 389, 13 Am. Rep. 454; Pennimans Case, 103 U. 
S. 714, 26 L. Ed. 602; Mason v. Eaile, 12 Wheat. 370, 6 
L. Ed. 660 ; Beers v. Haughton, 9 Pet. 329, 9 L. Ed. 145 ; 
Oriental Bank v. Freese, 18 Ma 109, 36 Am. Dec. 701; 

1 Reported in 81 Pac. 551. 



FISCHER V. KITTINGBR. 176 

July 1905] Opinion Per Fuixebton, J. 

Donnelly v. Corbett, 7 N. Y. 500; Rosenplaenter v. Provi- 
dent Sav. Life Assur. Soc, 91 Fed. 729 ; Van Rensselaer v. 
Snyder, 13 ]S\ Y. 299 ; Conkey v. HaH, 14 K Y. 22 ; Watts 
V. Everett, 47 Iowa 269 ; Toffey v. Atcheson, 42 N. J. Eq. 
182, 6 Atl. 885 ; Rader v. Southeasterly Road District, 36 
X. J. L. 273; Edwards v. Kearzey, 96 U! S. 595, 24 L. 
Ed. 793. 

Ira Bronson and D. B, Trefethen, for respondents. 

FuLLERTON, J. — On March 12, 1892, George W. Fischer 
and James Reid Maodonald, then copartners as 'Fischer & 
Macdonald, recovered a judgment in the superior court of 
King county, against the appellant, for the sum of $2,331.31 
and costs of action. Subsequently the judgment was, for a 
valuable consideration, assigned to the respondents. In the 
early part of the year 1898, the respondents brought a 
common law action against the appellant upon the judg- 
ment, and on May 18, of that year, recovered against him 
for $3,908.31, being the amount of the earlier judgment, 
with interest and costs of action added. On May 18, 1904, 
the respondents commenced proceedings to revive the last 
mentioned judgment, imder the statute found in 2 Hill's 
Code, §§ 462, 463, which provides for the revival of judg- 
ments by notice and motion. To the motion filed by the 
respondents, the appellant demurred, on the ground that 
the statute under which they were proceeding had been re- 
pealed by the act of March 6, 1897, relating to the dura- 
tion of judgments. Laws 1897, p. 52. The demurrer was 
overruled^ and an order made on November 17, 1904, re- 
viving the judgment in favor of the respondents, for the 
amount of the principal and interest then due thereon. This 
appeal is from the order reviving the judgment. 

The question whether the act of March 6, 1897, repealed 
the statute providing for the revival of judgments by notice 
and motion was first before this court in Palmer v. Laheree, 
23 Wash. 409, 63 Pac. 216. It was there held that, because 



1 



176 FISCHER V. KITTINGER. 

Opinion 'Per Fullebton, J. [39 Wasli. 

the act was one uniform piece of legislation on one subject^ 
it was void or valid as a whole^ and being void as to judg- 
ments rendered on contracts existing at the time of its enact- 
ment, the remedy of revival by notice and motion as to such 
judgments was not repealed by it. This construction of the 
statute was followed in the subsequent cases of Raught v. 
Lewis, 24 Wash. 47, 63 Pac. 1104, and Denio v. Benham, 
24 Wash. 485, 64 Pac. 749. In the last. case cited, the 
principal reliance of the appellant was on the question of 
the repeal of this statute^ and his learned counsel made able 
and elaborate arguments thereon. The court, however, felt 
that the question had been settled by the cases that had 
preceded it, and declined to reopen it or discuss it further. 
It will be observed that the judgment sought to be re- 
newed in this proceeding was rendered after the passage 
of the act of March 7, 1897, while the judgments under disr 
cussion in the cases above cited were rendered prior to the 
passage of that act. It was suggested at the hearing that 
this fact made a difference in the application of the rule, 
but we think there is no substantial ground for the conten- 
tion. The statute of March 7 was held inoperative as to 
the judgments in question in the cases announcing the rule, 
because to give it effect would impair the obligation of a 
contract, in violation of § 10, art. 1, of the federal consti- 
tution. As the judgment here in question was rendered 
upon a contract entered into prior to the passage of the act 
of March 7, it is plain that to hold the act operative as to 
it would have a like effect — it would impair the obligation 
of such contract. The statute, therefore, is inoper:\tive as to 
this judgment. Howard v. Boss, 38 Wash. 627, 80 Pac 
819. And, it being true that the act has no partial operative 
effect, it is as much invalid as a whole to this judgment as it 
is to contract judgments rendered prior to its passage. 
The order appealed from is affirmed. 

Mount, C. J., Crow, Hadley, Eudkin, and Dunbab, 
JJ., concur. 



STATE EX RBL. NBTTLETON v. CASE. 177 

July 1905] Opinion Per Haduct, J. 



(No. 6673. Decided July 14. 1906.) 

The State of Washington, on the Relation of C. M. 

NettletoUj as Administrator etc., et al,. Respondent, 

V. Otto A. Case, as County Clerk of 

King County, etc.. Appellant} 

Executors and Administrators — Fees — ^Taxation — ^Uniformity— 
Clerk's Fees Based Upon Valuation of Estate — Property Tax — 
Validity. Laws 1903, p. 290, prescribing a scale of fees, based upon 
the valuation of the estate, to be paid to the clerk of the court 
upon filing the first papers In probate, imposes a charge in the nature 
of a property tax ui)on estates, which is void because not uniform 
or levied in proportion to value, where the fees exacted are paid into 
the general fund of the county and have no relation to the services 
rendered in the administration of the estate. 

Same — Statutes — ^Title of Act — Sufficiency. Laws 1903, p. 290, 
entitled an act relating to the fees of county officers, and which pro* 
Tides for an ad valorem charge upon estates In probate, called a 
clerk's fee. In the nature of a property tax, violates art. 2, § 19 of 
the constitution providing that no bill shall embrace more than one 
subject, which shall be expressed in the title. 

Appeal from a judgment of the superior court for King 
county, Frater, J., entered April 13, 1905, in favor of the 
relators, granting a writ of mandate as prayed for, upon over- 
ruling a demurrer to the petition. Affirmed. 

Kenneth Mackintosh and Ernest B. Herald, for appellant. 
Allen, Allen & Stratton, for respondent. 

Hadley, J. — The relators applied to the superior court 
for a writ of mandate, directed to the county clerk of King 
county, requiring him to receive and file certain papers in 
probate proceedings. An alternative writ was issued. By 
the demurrer to the petition and alternative writ, the fol- 
lowing facts are admitted: D. McL. Brown died in King 

1 Reported in 81 Pac. 554. 

12-39 WASH. 



X78 STATE BX REL. NETTLETON v. CASE. 

Opinion Per Hadlbt, J. [39 Wash. 

counly, on the 23d day of Januaiyy 1905, he being at the 
time of his death a member of the partnership consisting of 
himself, W. A. Brown, D. A. Brown, and C. M. Nettleton, 
doing business under the firm name of Seattle Bridge Com- 
pany. Thereafter the said Nettleton was duly appointed as 
administrator of said partnership estate, and he qualified 
as such. An inventory and appraisement of the estate were 
duly prepared, the appraisement showing the valuation of 
the property belonging to the partnership at $127,655.50. 

The administrator presented the inventory and appraise- 
ment to the clerk for filing, whereupon the latter demanded 
that the administrator should pay the sum of $225 as pro- 
bate feee^ and refused to file the papers until said sum should 
be paid to him. Thereafter the administrator also prepared 
a petition for an order to sell certain real estate belonging 
to the partnership, and thereupon tendered the petition to the 
clerk for filing, together with filing fees; but the clerk re- 
fused to file the same, or to accept the sum tendered other- 
wise than on account of part payment of said demand of 
$225. The demurrer challenged the sufficiency of the above 
recited facts to authorize the issuance of the writ of mandate^ 
and the same was overruled. The clerk declined to further 
answer, and it was thereupon ordered that a peremptory 
writ of mandate should issue;, commanding him to immedi- 
ately file the papers mentioned. From said order he has 
appealed. 

The appeal involves the constitutionality of an act of the 
legislature of 1903, relating to the fees of state and county 
officers, witnesses, and jurors. See, Laws 1903, p. 290. That 
portion of the act particularly involved here relates to the 
charges in probate proceedings, and will be found at pages 
293, 294, of said session laws. The trial court held the said 
provisions to be unconstitutional. 

It will be observed that the statute requires the payment 
of $5, in probate proceedings, at the time the first pap-er 
therein shall be filed. In addition to the above amount, a 



STATE EX REL. NETTLBTON v. CASE. 179 

July 1905] Opinion Per Hadlet, J. 

graduated schedule of feee is provided. Increased amounts 
are chargeable to estates of $1,000 or more. The sum to 
be paid inci eases according to the value of the estate in- 
volved, the amount to be determined by the appraisement 
returned into court. When the amount of the estate is $1,000 
or more, and less than $2,000, the additional sum required is 
$2.50. The amount is thereafter increased, based upon 
stated estate values, until the valuation reaches $50,000 or 
more, and less than $100,000, in which case the sum of $125 
shall be paid. It is then provided that estates exceeding 
$100,000 shall pay, in addition to the said $125, the sum 
of $50 for each additional $20,000 valuation above $100,- 
000. The estate at bar, as we have seen, is valued some- 
what in excess of $127,000, and the fee demanded by the 
clerk was $225. Whether the amount demanded is excessive^ 
even under the terms of the statute, we shall neither dis- 
cuss nor decide^ since that matter is not discussed by counsel. 
The constitutionality of the statute is alone considered in 
the briefs. 

The increased fees provided by the statute are based upon 
an. ad valorem theory, and regulated according to the amount 
of property owned by an estate. It was the view of the trial 
court that charges so exacted amount to a property tax, and 
that the statute therefore violates our state constitutional 
provisions with respect to the uniformity of property taxa- 
tion. Section 1 of art 7 of the constitution provides that: 

"All property in the state not exempt under the laws of 
the United States, or under this constitution, shall be taxed 
in proportion to its value, to be ascertained as provided by 
law. . . ." 

Section 2 of the same article also requires that: 

"The Legislature shall provide by law a uniform and equal 
rate of assessment and taxation on all property in the state, 
according to its value in money, and shall prescribe such 
regulations by general law as shall secure a just valuation 
for taxation of all property, so that every person and corpora- 



1 



180 STATE EX REL. NETTLBTON v. CASE. 

Opinion Per Hadlet, J. [39 Wash. 

tion shall pay a tax in proportion to the value of his, her, 
or its property. . . :' 

Section 9 of the same article also contains the following : 

"For all corporate purposes, all municipal corporations may 
be vested with authority to assess and collect taxes, and such 
taxes shall be uniform in respect to persons and property 
within the jurisdiction of the body levying the same." 

It does not appear that the property of the estate at bar 
is exempt from taxation, under the first constitutional pro- 
vision above quoted, but it is subject to the burden thereof, 
and must be taxed uniformly with other property accord- 
ing to its value. If, therefore^ the charges imposed by the 
statute in question are in the nature of a tax upon the 
property, they would seem to impose a burden thereon in 
addition to that borne by property in general. 

Appellant argues that, even in cases of taxation, the rule 
of equality and uniformity does not forbid a liberal classi- 
fication, and that, since this law classifies estates according 
to their value, all in each particular class are affected alike. 
He cites State v. Clark, 30 Wash. 439, 71 Pac 20, and 
State V. Sharpless, 31 Wash. 191, 71 Pac. 737, 96 Am- St 
893. Neither of said cases relates to property taxation. 
The first discusses the inheritance tax law, and expressly 
holds that such a tax is not a property tax, but is a mere 
charge for the privilege of succession to the ownership and 
enjoyment of property, following Magoun v. Illinois Trusi 
& Sav. Bank, 170 U. S. 283, 18 Sup. Ct. 594, which ex- 
pressly distinguished such a charge from property taxes, 
which must be uniform and equal under the state constitu- 
tions. 

The second case cited discusses a license or occupation 
tax statute. Such statutes do not provide for property taxes, 
but are usually based upon the necessity for police regu- 
lation. It is true such statutes usually contain revenue fea- 
tures, and some may be entirely for revenue purposes and 
not for regulation; yet their exaction of revenue is not a 



i 



STATE EX REL. NETTLETON v. CASE. Jgl 

July 1905] Opinion Per Hadley, J. 

property tax, but is in the nature of an occupation tax for 
the privilege of conducting a particular business. 

Xo authority has been called to our attention which holds 
that property itself may be so classified that it shall bear 
a burden greater than that of other property of like value 
within the same assessment jurisdiction. If, then, the ex- 
actions from estates required by this statute amount to prop- 
erty taxes, we think the statute cannot be upheld. 

It is provided that the money thus collected shall be paid 
into the county treasury, and it thus becomes a part of the 
public funds, like that derived from ordinary taxation. Ap- 
pellant further argues^ that the same is true of the ordinary 
fees collected by the clerk for services rendered; that the 
charge in question here may be regarded not as a tax upon 
property, but as a fee for services rendered; and that the 
legislature has the right to fix the amount of such fee. It 
is true the statute calls the charge a "fee," but if it is 
apparent upon the face of the statute that the charge is 
in fact not based upon actual and necessary services rendered 
or to be rendered, but is based entirely upon a property valu- 
ation, thereby partaking of the nature of a tax, it would 
seem to be wholly immaterial by what name the statute may 
designate it. The statute in terms shows that the charge is 
based upon the value of the estate, and shall we conclude 
that the l^slature intended to say, in effect, that the amount 
of actual and required services varies according to the value 
of the estate only ? If the legislature intended to so declare, 
it cannot be said that the declaration is supported by experi- 
ence. Can the legislature arbitrarily say that greater ser- 
vice is required in the settlement of an estate valued at 
$1,000 than one valued at $999.99 ? We think not, and yet 
such is the exact effect of this statute, if it shall be held 
that these charges are fees for services only. 

It seems apparent to us that the legislature cannot arbi- 
trarily adopt such a standard for measurement of the value 
of the services of the clerk in probate proceedings. It is 



182 STATE EX REL. NETTLBTON v. CASE. 

Opinion Per Hahlbt, J. [39 Wash. 

true, our statutes fix the compensation of an administrator 
according to the value of the estate which comes into his 
hands, but such a measurement of value, we apprehend, is 
chiefly founded upon the degree of responsibility assumed, 
an element of proper consideration in fixing the value of 
an administrator's services. No such element exists in the 
case of the clerk. His services in the premises are purely 
clerical, and the amount thereof depends upon the filings 
and records of each particular case, which can in no reason- 
able sense be said to depend in each given case upon the value 
of the estate. It seems dear, therefore, that this statute 
exacts payments regulated by property valuations alone^ and 
that it must therefore be a tax upon property. Taxes are 
defined to be "burdens or charges imposed by legislative 
authority on persons or property, to raise money for public 
purposes, or, more briefly, ^an imposition for the supply of 
the publio txeasury.' " 27 Am. & Eng. Ency Law (2d ed.), 
578. The charges here discussed, and which are imposed by 
the statute in question, seem to include every element com- 
prehended in the above definition. 

Appellant has not called our attention to any decided cases 
bearing directly upon legislation of a character similar to 
that here under examination. Kelators, upon the other 
hand, cite decisions from two jurisdictions which are adverse 
to such statutes. A statute essentially similar to ours was 
passed in Minnesota. By the terms of that statute, a charge 
of $10 was exacted when the inventory valuation of the 
estate exceeded $2,000 and did not exceed $5,000. A charge 
of $25 was required when the valuation exceeded $5,000 
and did not exceed $10,000, and by similar increases the 
charges were greater for greater valuations. The supreme 
court of Minnesota held that the statute was unconstitutional 
in State ex rel. Davidson t\ Gorman, 40 Minn. 232, 41 IT. 
W. 948. The court reasoned as follows: 

"But the sums required by this act to be paid into the 
county treasury must be regarded as taxes, in the ordinary 



STATE EX REL. NBTTLETON v. CASE. Jgg 

July 1905] Opinion Per Hadlet, J. 

sense of that Tvord, and as it is used in the constitution. 
They are not in any proper sense fees or costs assessed im- 
partially, or with regard to the expense occasioned or services 
performed. The amounts are regulated wholly, but arbi- 
trarily, with regard to the value of the estate. They have 
no proximate relation to the amount of the compensation to 
be paid to the probate judge, nor to the other expenses of the 
court, nor to the nature or extent of the services which may 
become necessary in the proceedings. There is no necessary, 
natural, or even probable correspondence between the sums 
to be paid (widely different in amounts with respect to estates 
of different values) and the nature of the proceedings, or 
the character or extent of the services, which may be required 
in the probate court. It cannot be assumed, upon any ground 
of probability, that these proceedings or services will be dif- 
ferent or greater in the case of an estate of the value of more 
than $500,000 than in one of the value of from $35,000 to 
$50,000, — ^yet in the former case $5,000 must be paid, in the 
latter $100. . . • The purpose for which such payments 
are required is strictly public in its nature, being directly 
*for the use and benefit of the county,' as the law declares, 
and indirectly for the support of a court established by the 
constitution, with exclusive original jurisdiction in certain 
matters of great and general public concern. Nor is it prac- 
tically optional with executors or administrators, or those 
interested in 'the settlement of the estates of deceased per- 
sons, as to whether they will pay these exactions or not. If 
the law is valid, payment is practically necessary in the great 
majority of cases; and the mode adopted by the statute of 
securing payment by making that a condition precedent to 
the exercise of the functions of the probate court, is as really 
compulsory, and perhaps as effectual in general, as the means 
generally employed to enforce the payment of taxes." 

In 1895 the legislature of California enacted a similar 
statuta It was provided that a fee of $5 should first be 
paid by all estates, and an additional fee of $1 for each addi- 
tional $1,000 in excees of $3,000 of valuation. In Fatjo v. 
Pfister, 117 Cal. 83, 48 Pac. 1012, the statute was held 
unconstitutional. • The court said: 

"It is perfectly plain that the legislature has attempted 
by that portion of section one, above quoted, to levy a prop- 



184 STATE EX REL. NBTTLETON v. CASE. 

Opinion Per Hadlet, J. [39 Wash. 

erty tax upon all estates of decedents^ inf ants^ and incompe- 
tents. The ad valorem charge for filing the inventory is in 
no sense a fee, or compensation for the services of the officer, 
which are the same, as respects this matter, in every estate, 
large or small. To call it a fee is a transparent evasion. 
And it is not merely an inheritance tax, or at all analogous 
to an inheritance tax, as counsel would contend ; for, in the 
first place, it applies not only to the estates of decedents, 
but also to the estates of minors and incompetents under 
guardianship; and, as to the estates of decedents, it applies 
not to the distributable residue after payment of debts and 
expenses of administration, but to the whole body of the 
estate, and would be collectible^ if the law were valid, from 
an insolvent estate, as well as from one of equal appraised 
value and with no liabilities. As an attempt to levy a prop- 
perty tax, the act is in this particular invalid for several 
reasons; 1. It violates section 1 of article XIII of the con- 
stitution, in imposing an extraordinary tax upon the property 
to which it applies, in addition to the equal and uniform 
tax to which alone all property in the state is liable. 2. The 
subject of the act is not expressed in its title, and is in no 
wise germane thereto — a violation of section 24 of article 
IV of the constitution, which requires that every act shall 
embrace but one subject, which subject shall be expressed in 
its title." 

It will be observed, from the closing words of the last 
above quotation, that the California statute was also held 
invalid for the further reason that the subject was not men- 
tioned in its title. The title was essentially similar to that 
of our own statute, and was as follows: 

"An act to establish the fees of county, township, and 
other officers, and of jurors and witnesses in this stata" 

The title of our statute is as follows: 

"An act in relation to the fees of state and county officers, 
witnesses and jurors, and repealing an act entitled ^An act 
in relation to the fees of state and county officers, witnesses 
and jurors and amending Section 2086 of the Code of Wash- 
ington of 1881,' the same being approved March 15, 1893." 



HARRIS V. TACOMA. 185 

July 1905] Statement of Case. 

By no reasonable exercise of the imagination can it be 
inferred from the above title that the act treats of the sub- 
ject of exacting an ad valorem charge or tax from the prop- 
erty of estates. It therefore violates § 19 of art. 2 of our 
state constitution, which requires that, "No bill shall embrace 
more than one subject, and that shall be expressed in the 
titla" 

For the reasons hereinbefore assigned, and also upon 
authority of decisions cited, we believe the act in question 
is unconstitutional, in the particular here involved, and that 
the conclusion of the lower court was right. The judgment 
is therefore affirmed. 

Mount, C. J., FtrLLEETON, Cbow, Kudkin, and Dunbae, 
JJ., concur. 



(No. 5622. Decided July 18, 1906. 

W. H. Harbis et ah. Appellants, v. The CriY of Taooma, 

Respondent} 

Municipal Corporations — Special Assessments — ^Appeal to Su- 
preme Court — ^Notice — Sutficiency. A notice of appeal from a 
municipal assessment need not recite the names of all the appellants, 
but a substantial compliance with the statute is sufficient. 

Same — ^Filing of Transcript and Bond. Upon an appeal from a 
municipal assessment it is not essential that the transcript and bond 
be filed at the same time, and the filing of the bond two days before 
the transcript is not ground for dismissal. 

Same — ^Parties — Joinder of Objectors. All parties interested in 
objections to a municipal assessment may Join In the appeal to the 
superior court. 

Appeal from a judgment of the superior court for Pierce 
county, Huston, J., entered January 31, 1905, upon motion 
of the city, dismissing an appeal from a municipal asseea- 
ment, for irregularities in perfecting the appeal. Reversed. 

1 Reported in 81 Pac. 691. 



W 185 
m 099 



186 HARRIS V. TACOMA. 

Opinion Per Fullebton, J. [39 Wash. 

Emmett N. Parker and W. H. Harris, for appellants. 

0. G, Ellis, J. J. Anderson, and R. E. Evans, for re- 
spondent 

FuLLERTON, J. — The city of Tacoma improved certain 
of its streets, and sought to tax the costs thereof to the prop- 
erty benefited. Among the properties assessed for that pur- 
pose, were certain lots belonging to the appellants above 
named. The appellants filed written objections to the as- 
sessment roll, as returned to the city council, questioning 
the regularity and correctness of the assessment proceedings^ 
in so far as it affected their property. The city council, 
after a hearing had thereon, overruled the objections, and 
passed an ordinance confirming the assessment The ap- 
pellants sought to appeal from the action of the city council, 
and to that end filed a written notice of appeal with the city 
clerk, within ten days from the passage of the ordinance 
confirming the assessment Eight days later the attorney 
representing the appellants and the attorney for the city of 
Tacoma entered into a written stipulation, extending the 
time for filing the transcript from the city clerk's office with 
the clerk of the superior court from January 16, 1905, the 
date it would expire by the limitation in the statute, until 
January 23, 1905. On the same day the appellants executed 
their bond on appeal, and filed sudi bond with the stipula- 
tion in the office of the clerk of the superior court. Two 
days later, but within the statutory time, the transcript was 
filed. Three days thereafter the appellants served, on the 
head of the legal department of the city of Tacoma, and 
the city clerk, written notice of the filing of the transcript, 
fixing therein a time when the matter would be called up 
for hearing before the superior court On the day appointed 
for the hearing, the city of Tacoma, by its counsel, moved 
to dismiss the appeal for irregularities in the proceedings 
relating to the appeal, and for want of jurisdiction in the 
superior court. This motion was granted, and an order 



HARRIS V. TACOMA. 187 

July 1905] Opinion Per Fuixekton, J. 

entered dismissing the appeal. This appeal is taken from 
the order of dismissal. 

The statute relating to appeals from orders confirming 
assessments for a local improvement provides^ among other 
things^ as follows: 

"Such appeal shall be made by filing written notice of 
appeal with the city clerk of such city within ten days after 
the assessment roll shall have been confirmed, as aforesaid, 
and such notice shall describe the property and the objec- 
tions of such appellant to such assessment; and, within ten 
days from the filing of such notice of appeal, the appellant 
shall file with the clerk of the superior court of the county 
in which such city may be situated a copy of such notice 
of appeal, a transcript of the assessment roll, of the objec- 
tions thereto filed by him with the city clerk, as aforesaid, 
the order confirming such assessment roll, and the record of 
the council or other legislative body with reference to said 
assessment, which transcript shall be furnished and certified 
to by the city clerk as being a true copy of the original^ 
upon payment of the necessary fee© therefor. Such fees 
shall be the same as the fees payable to the county clerk 
for the preparation and certification of transcripts on appeal 
to the supreme court in civil actions. At the time of the 
filing of the transcript on appeal, the appellant shall execute 
and file with the clerk of the superior court a sufficient bond 
with at least two sureties (provided however, that any surety 
company authorized by the laws of the state of Washington 
to become surety upon appeal bonds shall be deemed suffi- 
cient security), to be approved by the judge of said court, 
conditioned to prosecute such appeal without delay and, if 
unsuccessful, to pay all costs to which the city is put by 
reason of such appeal. Such bonds shall be for a penal sum 
of not less than two hundred dollars. Said cause shall be 
docketed by the derk of such court in the name of the 
person taking such appeal as plaintiff and against said city 
as defendant as 'an appeal from assessment.^ Within three 
days after such transcript is filed in the superior court, as 
aforesaid, the appellant shall give written notice to the head 
of the legal department of such city, and to the city clerk, 
that such transcript is filed." Laws 1901, pp. 241, 242. 



188 HARRIS V. TACOMA. 

Opinion Per F'ullertoit, J. [39 Wash. 

The grounds of the motion to dismiss in the court below 
are, in brief, these: (1) That the notice served on the head 
of the legal department of the city of Tacoma, and the city 
clerk of that city, was insufficient because it did not recite 
the names of all of the appellants, either in the title or in the 
body of the notice; (2) that the bond on appeal from the 
orders and ordinance of the city council to the superior court 
was filed with the clerk of the superior court two days prior 
to the filing of the transcript on appeal; and (3) that the 
several appellants have improperly joined in one appeal. 

It hardly seems to us that any of these objections were 
well taken, nor do we think they merit an extended argu- 
ment. The purpose of the notice is to inform the city attor- 
ney and the city clerk of the time when the transcript is 
filed with the clerk of the superior court, and of the time 
when the appeal will be called up for hearing before that 
court. Doubtless it would be better if the names of all of 
the appellants were recited therein, but it is too much to 
say that the right of appeal is lost if it is not done. The 
notice is not jurisdictional, and a substantial compliance 
therewith is sufficient. 

Xor is it necessary that the transcript and bond be filed 
at the same instant, in order to perfect the appeal, notwith- 
standing the statute seems to co prescribe. The purpose of 
the bond is to secure the city in its costs in case the ap- 
pellant is unsuccessful on his appeal, and the bond is just 
as effectual for that purpose when filed two days before the 
transcript is filed as it is when both are filed at the same 
time. 

As to the last objection, we think it was the purpose of 
the statute to require that all appeals from an ordinance 
confirming an assessment for a local improvement should 
be heard at the same time in the superior court, to the end 
that the matter should be disposed of as speedily as possible. 
This being so, there can be no objection to the persons who 
object to the assessment joining in one notice of appeal, so 



WAPPENSTBIN v. ABERDEEN. 189 

July 1905] Opinion Per Curiam. 

long as the notice complies with the statutory requirement 
in stating the grounds of the several appeals. 

The judgmeQt appealed from is reversed, and the cause 
remanded, with instructions to reinstate the appeal. 

Mount, C. J., Hadley, Rudkin, Egot, Crow, and Dun- 
BAK, JJ., concur. 



(No. 5612. Decided July 18, 1905.) 

Minnie Wappenstein et aLj Respondents, v. The City of 

Aberdeen, Appellant} 

Appeal — Objections to Pleadings — ^Waiveb of Ebbob. An objec- 
tion that a complaint does not state facts sufficient to constitute 
a cause of action, cannot be first raised in the supreme court, where 
the defect is one that is capable of amendment, but is waived by an- 
swer and trial on the merits. 

Appeal from a judgment of the superior court for Che- 
halis county, Irwin, J., entered September 6, 1904, upon 
the verdict of a jury rendered in favor of the plaintiffs, in 
an action for damages to property by the change of a street 
grada Affirmed. 

B. E, Taggart and E- E. Boner, for appellant. 
John C. Hogan, for respondents. 

Pee Cukiam. — This is an appeal from a judgment award- 
ing the respondents damages caused their property by rea- 
son of a change in the grade of the street fronting thereon, 
made imder the authority of the appellant city. The as- 
signments of error raise but one question, namely, does the 
complaint state facts sufficient to constitute a cause of 
action. It is said that the complaint fails to state a cause 
of action because it fails to allege that the property had 
been improved with reference to the established 'grade. But 
if it be the rule that a municipality may make as many 

1 Reported in 81 Pac. 686. 



190 MACK V. MACK. 

^ Syllabus. [39 Wash. 

changee in the grade of a street as it pleases without sub- 
jecting itself to damages at the suit of property owners own- 
ing property fronting thereon, so long as the property has 
not been improved with reference to an established grad^ 
and that a complaint asking for damages which fails to 
allege improvement of the property with reference to the 
established grade is defective^ we think the appellant is 
estopped from urging the question on this appeal The 
objection is raised for the first time in this court, and, as 
the defect is one that could have been cured by amendment, 
it was waived by answering over and going to trial on the 
merits. 

The judgment is affirmed. 



(No. 5489. Decided July 18. 1905.) 

RoBEKT Mack, Appellant, v. John Mack et ah. 

Respondents} 

CoNTBACTS — Grubstake — Tbust — ^Accounting — Evtoencb — Suffi- 
ciency. In an action between brothers for an accounting and the 
transfer of stock, the evidence is sufficient to show that the defendant 
held a one-third interest in a mining claim in trust for the plaintiff, 
where it appears that the claim was located in defendant's name and 
development work done by plaintiff under a grubstake agreement 
in consideration of a one-third interest, that defendant accounted to 
plaintiff for one-third of receipts from partial sales, and wrote letters 
acknowledging the trust; and it is error to dismiss the action. 

Same — Statute of Frauds — Agreement Not in WRrriNG. A con- 
tract whereby defendant grubstaked the plaintiff, who did develop- 
ment work upon a mining claim, in consideration of a one-third 
Interest therein, which interest the defendant agreed to hold in trust 
for him, is not within the statute of frauds and need not be in 
writing. 

Same — ^Accounting — ^Trust — Expenditures in Caring for Joint 
Property. Where the locator of a mining claim held one-third thereof 
in trust for the plaintiff, in consideration of development work done, 

1 Reported In 81 Pac. 707. 



MACK V. MACK. 191 

July 1905] Opinion Per Cbow» J. 

and subsequently expended money and time in caring for and man- 
aging the property, upon a sale of the property and an accounting, 
the trustee is entitled to one-third of the sum Justly due for such 
disbursements and services, as a lien to be charged against the plain- 
lift's one-third interest In the proceeds. 

Appeal from a judgment of the superior court for Spo^ 
kane county, Kennan, J., entered June 2, 1904, in favor of 
the defendants, after a trial before the court without a jury, 
dismissing on the merits an action to recover mining stock 
held in trust for plaintiff. Reversed. 

Kirhpatrick, Price & Carver, and Barnes & Latimer, for 
appellant. 

Danson & Hunehe, for respondents. 

Ckow, J. — This action, brought by appellant, Robert 
Mack, against respondents John Mack, W. J. Morrison, The 
Athelstan- Gold and Copper Mininp* Company, Ltd., and C. 
S. Slawson, was originally instituted in the superior court of 
King county, later transferred to Spokane county, and there 
tried upon the issues joined. The original complaint was so 
amended as to correct the name of the mining company in 
whicli an error had been made^ and to bring in C. S. Slawson 
as defendant Pending the action, restraining orders were 
made and served upon said W. J. Morrison, individually and 
as secretary of the corporation, and upon said John Mack and 
C. S. Slawson, to prevent the sale or transfer of certain min- 
ing stock hereinafter mentioned. Upon trial, the superior 
court, without making findings of fact or conclusions of law, 
dissolved said restraining order, dismissed the action, and 
entered judgment against appellant From said final judg- 
ment, this appeal has been taken. 

The vital questions involved on this appeal are purely 
questions of fact This being an action in equity, it is now 
before us for examination de novo and determination upon 
the entire record. The trial court having failed to make 
any findings of fact or conclusions of law, there is nothing 



192 MACK V. MACK. 

Opinion Per Crow, J. [39 Wash. 

before us to disclose the principles upon which the final 
judgment was entered, and we are now compelled to decide 
all questions of fact and weigh conflicting evidence without 
deriving any benefit from expressed views or findings of the 
trial court. As the conclusions at which we arrive do not 
agree with those of the honorable and learned trial judge^ 
we find ourselves, in the absence of findings of fact or con- 
clusions of law, unable to understand the theory upon which 
the action was dismissed. From the nature of defenses 
made, however, we conclude it must have been on some 
question of law rather than one of fact 

Having carefully examined the pleadings and evidence 
upon consideration thereof, we find the facts to be, in brief, 
as follows: Appellant, Robert Mack, the respondent John 
Mack, and one William Mack, are brothers. During the 
year 1893, and for some time thereafter, Robert Mack and 
John Mack were locating mining claims in British Columbia, 
under an agreement whereby John was to defray all ex- 
penses, or do the "grub-staking," while Robert was to locate 
the claims, which they were to own, share and share alike; 
Under this agreement, a number of claims were located in 
the years 1893 and 1894. Afterwards, in the year 1896, 
John Mack, the respondent, went from Spokane to British 
Columbia, not for the primary purpose of locating additional 
claims, but for the purpose of having assessment worij: done 
on various properties owned by him in that locality. Be- 
fore leaving Spokane, he, in conversation with Robert Mack, 
agreed that, if he located any additional ground on his trip^ 
the same was to be located for himself and appellant. While 
in British Columbia, he had an interview with one William 
J. Porter, in which he requested said Porter to show him 
some valuable ground. Thereupon Porter agreed to do so, 
provided respondent would locate the same not only for 
respondent himself, but also for his brother Robert Mack. 
To this respondent assented, and thereupon Porter showed 
him certain ground and assisted him in locating the Athel- 



MACK v. MACK. 193 

July 1905] Opinion Per Cbow» J. 

Stan daim, now in dispute in this action. The location was 
made in the nanije of John Mack, and the claim continued 
at all times to stand in his name, except as hereinafter 
stated. 

No particalax work was done upon said claim by re- 
spondent at the time of its locatio.*, but in 1897 it became 
necessary to do the assessment work, and it was also deemed 
advisable to do further work for the purpose of develop- 
ment. About this time, Will Mack came from Indiana to 
Spokane, Washington, with the intention of going to British 
Columbia with his brother, the appellant Robert Mack, and 
assisting in doing assessment and development work on the 
Athelstan claim, with the understanding that he was to be 
paid going wages by John Mack for his services. Robert 
and Will procured an outfit and proceeded from Spokane 
to British Columbia, did the assessment work, also did a 
large amount of development work, and discovered a good 
ore body, showing the property to be very valuable. While 
they were on the claim, the respondent John Mack visited 
them for two or three days, and entered into a contract by 
which it was stipulated that the claim should be owned, one- 
third by himself, one-third by Robert, and one-third by Will, 
the development work then in progress to be done by Will 
and Robert without further compensation than their actual 
expenses, or grub-stake, which was to be furnished by John, 

After the development work had been done by Robert 
and Will, the claim, by reason thereof, showed sufficient 
value to enable respondent John to bond it to the partnership 
firm of Crane & Loring, who were to pay $15,000 for it^ 
in the event of their taking up the bond. Crane & Loring 
did, in the year 1898, pay $1,500 upon this bond, to the 
respondent John, who immediately paid $500 to Robert and 
$500 to Will. After this payment of $1,500 had been made 
-by Crane & Loring, the bond was forfeited by them, and 
the claim reverted to respondent John Mack. Some time 

18— 89 WASH. 



194 MACK y. MACK. 

Opinion Per Cbow, J. [39 Wash. 

during the year 1900, the reepondent John effected a sale 
of the claim to the Atfaelstan Gold and Copper Mining Com- 
pany, Ltd., for $3,000 cash and 350,000 shares of the paid-up 
capital stock of said company. Immediately thereafter John 
paid $1,000 of said sum to the appellant Robert, $1,000 
to Will, and retained the remaining $1,000 himself. About 
the same time he wrote separate letters to Will and Robert, 
in which he^ in substance, stated that he held in his own 
name, in trust, in order that he might handle the same, said 
350,000 shares of stock, one-third thereof for Robert^ and 
one-third for WilL 

About this time it seems to have been agreed between 
the three brothers that 50,000 shares of the stock was to 
be held for their father, leaving 300,000 shares for them- 
selves. No further settlement was ever made between John 
and appellant Robert. Early in the year 1903, appellant 
wrote several letters to John, asking about his one-third 
interest in the stock, and requesting that the same be trans- 
ferred to him. His letters were not answered, and thereupon 
he employed an attorney to write John and secure a settle- 
ment. John referred the attorney's letter to his own- attor- 
neys in Spokane, with the result that> after a brief cor- 
respondence) he denied any liability whatever, and insisted 
that appellant had no interest in the claim or the stock. 
Thereupon this action was commenced to recover the stock, 
which appellant claimed was held by respondent Jc^in as 
trustee for him. 

Shortly after the correspondence between appellant and 
respondent John Mack had commenced, said respondent 
entered into a written contract with the respondent W. J. 
Morrison, whereby he agreed to sell said 350,000 shares 
of said capital stock to the said Morrison for four cents 
per share, or for the total sum of $14,000, payable within 
twelve months from May 29, 1903, as follows: One and 
one-half cents per share on or about November 29, 1903, and 
two and one-half cents per share within six months there- 



MACK V. MACK. 195 

July 1905] Opinion Per Cbow, J. 

after ; and in pursuance of said contract the stock was placed 
in escrow in a bank in British Columbia. 

The original complaint in this action was served upon 
the respondent John Mack about Ifovember 10, 1903, but 
was verified on the 4th day of !Jfovember, 1903. At some 
time between the 4th and the 9th days of November, 1903, 
the respondent John Mack entered into an agreement with 
the respondent C. S. Slawson, whereby he sold his interest 
in the Morrison QOntract to said Slawson for $10,000; 
$5,000 being payable November 6, 1903, and $5,000 Janu- 
ary 1, 1904. It appears from the record that Slawson has 
paid the respondent John Mack in full for two-thirds of 
the stock under this contract^ the remaining one-third, or 
116,000 shares, being still held in escrow under a subsequent 
written agreement entered into between the respondent John 
Mack and said Slawson, to abide the result of this litiga- 
tion. 

Many of these facts which we find are disputed by re- 
spondent John Mack, but are supported by evidence of wit- 
nesses introduced on behalf of appellant. We are compelled 
to accept the statements of appellant and his witnesses, for 
the reason th:x\, they are clearly corroborated by imdieputed 
facts and written evidence, while the evidence of John is 
in direct conflict therewith, and he admits that he hnd for- 
gotten the contents of the letters written by him until they 
were produced in court. It is contended by the respondent 
John Mack that neither Robert nor Will ever had any valid 
or legal interest in or to the Athelstan claim or said mining 
stock. lie insists that all payments to them from the pro- 
ceeds of the Crane & Loring bond, and the sale to the min- 
ing company, were gifts, made by him with the sole inten- 
tion of helping his brothers, who needed assistance, and that, 
by the statements contained in his letters, he only meant 
that, if he ever made any sale of the stock, he would help 
them further, but tliat he was under no legal obligation 
to do so. We cannot possibly see how these contentions can 



196 MACK y. MACK. 

Opinion Per Cbow, J. [39 Wash. 

be sustained, in the light of the undisputed fact that, at the 
time Robert and Will did the assessment work, he paid them 
nothing for their services, but only defrayed actual expenses ; 
and the fact that, by statements contained in his letters^ he 
clearly recognized their right to a one-third interest in the 
stock; and the fact that, in making settlement with them, 
he always paid them exactly OLC-third of the amounts re- 
ceived from the claim. We are forced to find that the posi- 
tion of the appellant has been sustained by the evidence, and 
in the absence of any assistance^ from findings of fact or 
conclusions of law made by the trial court, to aid us in 
weighing the evidence, must so conclude. 

Bespondent John Mack, at the trial, further contended, 
and now contends^ that the alleged contract under whidi 
appellant claims his one-third interest was not in writing, 
and was void, being within the statute of frauds. It may 
have been upon this theory that the trial court dismissed 
the action. We fail to see how the statute of frauds has 
any application whatever to the facts as found by us, and 
think there is no merit in respondent's contention. The 
contract which we find to have been entered into by John 
Mack and Robert Mack is enforcible, and not within the 
statute of frauds. Raymond v. Johnson, 17 Wash. 232, 49 
Pac. 492, 61 Am. St 908 ; Eberle v. Carmichael, 8 K Mex. 
696, 47 Pac. 717; Gore v. McBrayer, 18 Cal. 583; Murley 
V. Ennis, 2 Colo. 300; Meylette v, Brennan, 20 Colo. 242, 
38 Pac. 75. 

Another question appears in the record. Respondent John 
Mack, in his affirmative answer, pleads that, during the 
time he managed said claim and cared for the disputed 
interests therein, and in the Athelstan Gk>ld and Copper 
Mining Company, Ltd., he made a considerable outlay of 
funds for necessary expenses^ amounting to $1,442, and 
also employed his own time to the value of $2,000; and 
while he denies that appellant ever had any interest in said 
mining claim, or now has any interest in the stock, he asks^ 



MACK V. MACK. 197 

July 1905] Opinion Per Crow, J. 

in the event of an adverse ruling against him on said issue, 
that he be decreed a lien upon said stock for the total sum 
of $3,442, to compensate him for such disbursements and 
services* In our opinion he is entitled to a lien for such 
sums as may be justly due him. Upon a careful examina- 
tion of the evidence we find that he has made necessary 
and proper disbursements to the amount of $724.50 in cash, 
and that he has put in tima in caring for, looking after, 
and managing the property, to the value of $1,000, being 
$1,724.50 in all. Equitably one-third of this sum should 
be paid by the appellant Kobert Mack, before he can be 
permitted to recover the stock which is held by John in 
trust for him. 

As a block of 50,000 shares of this stock was to go to 
the father, we find that respondent John Mack now holds 
in his name, in trust for appellant, 100,000 shares of the 
paid-up capital stock of the Athelstan Gold and Copper 
Mining Company, Ltd., and that appellant is entitled to 
have the same transferred to him, upon paying to said re- 
spondent John Mack one-third of said sum of $lj724.50, 
being $578.17. 

We find that error was committed in dismissing the action, 
and it is therefore ordered that the judgment of the hon- 
orable superior court be reversed, that this cause be remanded 
with instructions to enter a decree adjudging the appellant 
Robert Mack to be entitled to recover from the respondent 
John Mack 100,000 shares of the capital stock of said min- 
ing company, provided that, within ninety days after the 
filing of the remittitur from this t»urt, said appellant shall 
first pay to the said respondent John Mack the said sum 
of $578.17, with six per cent interest from the 4th day of 
September, 1903, the date of the commencement of this 
action; said decnee to further pro\4de that said respondent 
John Mack be adjudged to hold a lion upon said stock for 
said sum; and that, in the event said appellant shall not 
pay said sum within said ninety days, the said John Mack be 




198 STATE EX RBL. BASSETT v. FREASURE. 

Opinion Per Curiam. [39 Wash. 

entitled to an order directing a sale of said stock, or so 
much thereof as may be necessary, to satisfy said sum of 
$578.17 and interest It is further ordered that the ap- 
pellant recover his costs in the superior court, and also upon 
this appeal. 

Mount, C. J., Eudkin, Root, and Dunbab, JJ., concur. 

Hadley and Fullerton, JJ., took no part. 



(No. 6636. Decided July 18. 1906.) 



'^IJpS8| The State of Washington, on the Relation of Tillie 



Bassett, Respondent, v. J. A. Fbeasuee, Justice 
of the Peace, Appelhml} 

Appeal — ^Appealable Obdebs — Amount in Ck>NTiiOTEB8T. The su- 
preme court has no Jurisdiction of an appeal from an order of the 
superior court, reversing, on certiorari, a judgment of a justice of 
the peace, where the original amount in controversy did not exceed 
$200, and the validity of a tax or statute was not involved. 

Appeal from an order of the superior court for King 
county. Bell, J., entered October 3, 1904, after a hearing 
upon a writ of review, before the court without a jury, 
reversing and vacating the judgment of a justice of the 
peace. Appeal dismissed. 

W, B, Oshoum, for appellant- 
William C. Keith, for respondent 

Peb Curiam. — On the 1st day of October, 1904, the su- 
perior court of King county, on application for a writ of 
review, made an order directing one of the justices of the 
peaoG of said county to vacate and set aside a judgment 
theretofore rendered by said justice, and to grant a change 
of venue in the action in which tlie judgment was rendered. 
From this order the plaintiff appeals. 

iReported in 81 Pac. 688. 



STATE V. McPHAIL, 199 

July 1906] Syllabus. 

The proceediDg before the justice was a civil action at 
law for the recovery of a money judgment, where the original 
amount in controversy did not exceed the sum of $200, and 
where the legality of a tax, impost, assessment, toll, munici- 
pal fine, or the validity of a statute was not involved. Under 
the plain provirfons of the constitution and the numerous 
decisions of this court, we have no jurisdiction of this appeal. 
State ex rel. Gillette v. Superior Court, 22 Wash! 496, 61 
Pac. 158 ; State ex reL Wallace v. Superior Court, 24 Wash. 
605, 64 Pac. 778. 

The appeal is therefore dismissed. 



(No. 5557. Decided July 18, 1M6.) 

The State of Washington, Rcspondeni, v. Angus J. 

McPhail, Appellant} 

CBiMnvAL Law — Homicide — Insanity — Evidence — Pbevious En- 
<x>UNTEB — Rebuttal Testimony Reflecting on Chabacteb — Objec- 
tions. In a proBecution for murder, where the testimony of the ao- 
cused supports a plea of insanity, superinduced by a blow on the head 
received six months previously in an encounter with a third person, 
evidence in rebuttal, offered to show the nature and extent of such in- 
juries, is not objectionable as tending to prove the bad character of 
the accused, although unnecessary details of the trouble were received 
in evidence under one general objection that it was not proper re- 
buttal; since the evidence was strictly in rebuttal and competent for 
the purpose offered. 

Criminal Law — ^Tbial — Instbuctions — Pbovince of Juby — Spe- 
cific Request. An instruction that the Jury are judges of the credi- 
bility of the witnesses and the weight of the evidence, is proper and 
sufficient, in the absence of any specific request for an instruction 
that they are the "sole Judges of the facts." 

Same — Instbuctions — Trial — Withdrawal of Issue as to Lesseb 
Deobee of Offense — Comment on Facts — ^Want or Evidence. In a 
prosecution for murder in the first degree, an instruction to the Jury 
that there is no evidence in the case to support a verdict of man- 
slaughter, ' is not an unlawful comment on the facts, in violation 

1 Reported in 81 Pac. 683. 



200 STATE V. McPHAIL. 

Opinion Per Rudkiit, J. [39 Wash. 

of Const art. 4, § 16; since the determination of the issues raised 
in a cause« and whether there is any evidence in support thereof, 
are questions of law and not of fact 

Same — Instbuctions as to Manslaughter on Pbosbcution fob 
MuBDEB — ^No Evidence of Lessee Offense. In a prosecution for 
murder in the first degree, the court is not required to give any in- 
structions upon the lesser offense of manslaughter, where there is 
no evidence on which to base such an instruction. 

Same — ^E^tioence of Manslaughter — ^Defense of Insanitt. In a 
prosecution for murder in the first degree, there is no evidence that 
the accused was guilty of manslaughter, as defined by the statute, 
where it appears that he had ill feeling and had made threats 
against deceased, a rival in business, and after- being in his place 
over an hour, without any apparent provocation, shot deceased in 
the back. Inflicting a mortal wound> there being no defense except 
Insanity. 

Appeal from a judgment of the superior court for Sno- 
homish county, Denney, J., entered December 26, 1903, upon 
a trial and conviction of murder in the first degree. Af- 
firmed. 

Hathaway d' Alston, for appellant. 
J. W, Ilartneti, for respondent. 

EuDKiN, J. — The appellant was convicted of the crime 
of murder in the first degree, and from the judgment and 
sentence of the court, this appeal is prosecuted. It appears 
that the appellant and the deceased were rivals in the saloon 
business, at the town of Darrington, in Snohomish county. 
The appellant opened the first saloon in the town, and the 
competition caused by the saloon afterwards opened by the 
deceased curtailed the appellant's business, to such an ex- 
tent as to cause considerable ill feeling on his part toward 
the deceased. On one or more occasions prior to the homi- 
cide, the appellant abused the deceased in public, called him 
vile names, and made threats of a more or less direct nature 
against him. On the 10th day of May, 1903, the appellant 
packed up his belongings with the intention of leaving the 
town. About 3:00 o'clock of that day, he repaired to the 



STATE V. McPHAIL. 201 

July 1906] Opinion Per Rudkin, J. 

Baloon of the deceased, accompanied by those who had been 
assisting him in packing up. After he had been in the 
saloon about an hour and a half, without any apparent provo- 
cation, he shot the deceased in the back, over the bar, inflict- 
ing a mortal wound, from which the deceased expired almost 
imjnediately. After firing the fatal shot, the appellant 
stepped around the end of the bar and fired a second shot 
in the direction of the prostrate form of the deceased. Coun- 
sel for appellant insist that there is a conflict in the testi- 
mony as to the firing of the second shot, but a careful reading 
of the evidence discloses no such conflict, if the fact be at 
all material. After the homicide, the appellant emptied two 
discharged shells and three loaded ones from his revolver, 
upon the floor, threw the revolver under a row of barrels 
in the saloon, and left the place. Some hours later he re- 
turned to the house where he had been stopping and was 
there apprdiended. 

We will now consider the various errors assigned in the 
order in which the rulings occurred at the trial. 

(1) It is assigned as error that the court admitted evi- 
dence tending to prove the bad character of the appellant^ 
although the appellant did not take the witness stand or 
put his character in issue. While the appellant interposed 
the general plea of not guilty, all the testimony offered in his 
behalf tended to establish the defense of insanity. It was 
claimed on the part of the appellant that he was insane at 
the time of the homicide^ and that such insanity was super- 
induced, in part at leasts by blows which he had received 
on the head some six months before, in an encounter with 
one Gallagher. In rebuttal the state offered testimony tend- 
ing to show the nature and extent of the injuries inflicted 
upon the appellant in such encounter, but disclaimed any 
right to prove anything beyond this. It is true, the witnesses 
went into the details of the trouble between the appellant 
and Gallagher further than was necessary for that purpose, 
but the only objection interposed was the general one that 



202 STATE V. McPHAIL. 

Opinion Per Rudkiit, J. [39 Wash. 

the testimony was not proper rebuttal. This testimony waa 
clearly competent for the purpose for which it was offered, 
and was strictly in rebuttal of the defense interposed by the 
appellant There was no error in this ruling. 

(2) The court instructed the jury as follows: "You are 
the judges of the credibility of the witnesses and the weight 
to be attached to the testimony of each and all of them." 
The appellant contends that the jury should have been in- 
structed that they were the sole judges of the facts. The 
charge given was correct as far as it went, and if the ap- 
pellant desired a more specific charge, or a charge in the 
language of the statute, he should have requested it. There 
was no error in the charge as given. 

(3) The court further instructed the jury that they might 
find the appellant guilty of murder in the first d^ree^ guilty 
of murder in the second degreei, or not guilty ; but that there 
was no evidence in the case to support or justify a verdict 
of guilty of manslaughter. Counsel for appellant earnestly 
insist that this instruction was a comment on the facts, in 
violation of art 4, § 16, of the state constitution, which pro- 
vides that, "Judges shall not charge juries with respect to 
matters of fact, nor comment thereon, but shall declare the 
law." 

It seems to us that counsel labor under an entire misap- 
prehension as to tlie purpose and effect of this constitutional 
provision. It relates only to the manner of conducting trials 
and submitting questions of fact to juries, and does not limit 
the power of the courts in the determination of questions of 
law. In this, as in all other jurisdictions, the court must 
determine the issues to be submitted to the jury from the 
pleadings and proofs, and in making such determination 
it decides matters of law and not matters of fact If the 
court improperly withdraws an issue from the consideration 
of the jury, its ruling is erroneous, not because it is a com- 
ment on the facts, or a charge with respect to matters of fact, 
in violation of the provision quoted, but because it deprives 



STATE V. McPHAIL. 203 

July 1905] Opinion Per Rudkin, J. 

the parties of a trial by jury^ in violation of section 21 or 
section 22 of art. 1 of the constitution, which provide that 
the right of trial by jnry shall remain inviolate, and that 
in criminal prosecutions the accused shall have a speedy 
public trial by an impartial jury. 

The provision upon which counsel rely applies to both 
civil and criminal cases, and, if they are correct in their 
contention, this court has been in error throughout its entire 
existence in holding that whether there is any testimony 
to support a cause of action or a defense presents a question 
of law for the determination of the court, and not a question 
of fact for the jury. The position taken by counsel is that 
the trial court must submit every issue raised by the plead- 
ings to the jury, regardless of the state of the testimony 
or the absence of all testimony. This contention finds no 
support in our constitution or elsewhere, and cannot prevaiL 
It is true, Bal. Code, § 6955, provides that, 

"Upon an indictment or information for an offense con- 
sisting of different degrees, the jury may find the defendant 
not guilty of the degree charged in the indictment or infor- 
mation, and guilty of any degree inferior thereto, or of an 
attempt to commit the offense;" 

but similar statutes exist in the United States, and in all 
the states, and the decisions are practically uniform to the 
effect that a defendant can only be convicted of a lesser 
degree, or of an attempt, when there is testimony to sustain 
such a conviction. The information before us charges the 
the crime of assault, and assault and battery, but it would 
be an anomaly to hold that insanity excused the homicide 
but did not excuse the assault or the batterv which was 
the direct and proximate cause of the homicide. The rule 
on the subject under consideration i thus stated in 11 Ency. 
Plead. & Prac, p. 211 : 

"On a criminal prosecution, it is not necessary for the 
court of its own motion, or on request, to instruct as to 
the lower grades of crime involved, where there is no evi- 



204 STATE V. McPHAIL. 

Opinion Per Rudkin, J. [39 Wash. 

denoe on which to base such an instruction. The giving of 
such an instruction is not only unnecessary but improper." 

This rule is fully sustained by the authorities. Sparf v. 
United States, 156 U. S. 51, 15 Sup. Ct. 273; Andersen v. 
United States, 170 U. S. 481, 18 Sup. Ct. 689; Davis v. 
United States, 165 U. S. 373, 17 Sup. Ct 360. The last 
case cited is very similar to the case at bar. In stating 
the facts, Mr. Justice Brewer says: 

*'The principal defence presented on this trial, as on the 
former, was insanity. Indeed the circumstances of the 
homicide were such as to preclude any other. The deceased, 
peacefully at work, unarmed and making no demonstrations 
against ike defendant, was shot and killed by the latter, 
and this in consequence of a dispute more than a week old. 
The act thus done, if done by a man fully responsible for 
his actions, was unquestionably murder in the first degree.'' 

And on the refusal of the court to instruct as to manslaughter 
the court says: 

"The last instruction asked wps in reference to man- 
slaughter. But under the evidence^ there was no occasion 
for any statement of the law on this. There was no testi- 
mony to reduce the offence, if any there was, below Ihe grade 
of murder. If the defendant was sane and responsible for 
his actions there was nothing upon which any suggestion of 
any inferior degree of homicide could be made, and there- 
fore the court was under no obligation (indeed it would 
simply have been confusing the minds of the jury) to give 
an instruction upon a matter which was not really open for 
their consideration." 

To the same effect, see, Foster v. People^ 50 N. Y.598 ; Peo- 
ple V. Barry, 90 Cal. 41, 27 Pac 62; People v. McNutt, 
93 Cal. 658, 29 Pac. 243; Clark v. Commonwealth, 123 
Pa. St. 555, 16 Atl. 795; State v. Lane, 64 Mo. 319; Mc- 
Coy V. State, 27 Tex. App. 415, 11 S. W. 454; State v. 
McKinney, 111 X. C. 683, 16 S. E. 235; Jones v. State, 
52 Ark. 345, 12 S. W. 704 ; McClernand v. Commonwealth, 
11 Ky. Law 301, 12 S. W. 148 ; O'Brien v. Commonwealth, 
89 Ky. 354, 12 S. W. 471; State v. Estep, 44 Kan. 572, 



STATE 'V. McPHAIL. 205 

July 1905] Opinion Per Kudkin, J. 

24 Pac. 986 ; Robinson v. State, 84 Ga. 674, 11 S. K 544 ; 
State V. Cole, 63 Iowa 695, 17 N. W. 183. 

As heretofore stated, there is nothing in bur constitution 
rendering these decisions inapplicable in this stata Our 
own decisions are in harmony with the cases cited. Ln 
Slate V. Dolan, 17 Wash. 499, 50 Pac. 472, and State v. 
Young, 22 Wash. 273, 60 Pac. 650, the court held that it 
was error to refuse to submit to the jury the inferior degrees 
of the crime charged, but in each case there was testimony 
to sustain a verdict for such inferior degrees. In State v. 
Bailey, 31 Wash. 89, 71 Pac. 715, a prosecution for a rape, 
the court held that it was not error to fail to instruct the 
jury that they might find the defendant guilty of assault^ 
or assault and battery, because there was no testimony tend- 
ing to support these lesser offenses. The court cited with 
approval from State v. Wood, 124 Mo. 412, 27 S. W. 1114, 

"There was nothing in the evidence calling for an in- 
struction on the lower grade for an assault to kill, . . • 
and under such circumstances the court should not invite 
the jury to find for a lower grade than is made by the 
evidence.** 

# 

Was tAre any testimony in this case tending to prove 
that the defendant was guilly of manslaughter? Man- 
slaughter is defined by our statute as the unlawful killing 
of a human being, without malice, express or implied, either 
voluntarily upon a sudden heat, or involuntarily but in the 
commission of some unlawful act. All the facts in relation 
to the homicide are stated above, and there is not the slightest 
testimony of any kind in justification or mitigation. The 
appellant was either insane, or he was guilty of murder in 
the first or second degree, and the court committed no error 
in so charging. 

In concluding this branch of the case we will only add 
that^ if there is any testimony tending to prove the inferior 
degrees of the crime charged in the information, the court 
must submit sudi inferior degrees to the jury by proper 



206 STATE V. McPHAIL. 

Opinion Per RtJDKiN, J. [39 Wash. 

instructions; but if there is no testimony tending to prove 
the commission of any of the lesser crimes charged, the 
court is not required to submit such lesser crimes to the 
jury, and conunits no error in its refusal so to do. A 
party has no constitutional right to a compromise verdict 
which is not supported by any testimony. Indeed, in State 
V. Robinsofi'j 12 Wash. 349, 41 Pac. 61, 902, a prosecution 
for murder, it was held, that under the facts there pre- 
sented, the defendant was guilty of murder or not guilty, 
and that a verdict for manslaughter was not supported by 
any testimony and was tantamount to a verdict of not guilty, 
The defendant was accordingly discharged. 

In answer to the contention that> if the court may with- 
draw one degree of the crime from the jury, it may with- 
draw all and direct a verdict of guilty^ we need only repeat 
the language of Judge McCrary, in United States v. Taylor, 
3 McCrary 500, approved by the supreme court of the United 
States in Sparf v. United States, supra: 

"In a civil case, the court may set aside the verdict, 
whether it be for the plaintiff or defendant, upon the ground 
that it is contrary to the law as given by the court; but 
in a criminal case, if the verdict is one of acqftittal, the 
court has no power to set it aside. It would be a useless 
form for a court to submit a civil case involving only ques- 
tions of law to the consideration of a jury, where the verdict, 
when found, if not in accordance with the court's view of 
the law, would be set aside. The same result is accomplished 
by an instruction given in advance to find a verdict in ac- 
cordance with the court's opinion of the law. But not so in 
criminal cases. A verdict of acquittal cannot be set aside; 
and therefore, if the court can direct a verdict of guilty, 
it can do indirectly that which it has no powOT to do 
directly." 

Counsel for respondent insists that the appellant was not 
prejudiced by the refusal of the court to submit the ques- 
tion of manslaughter to the jury, inasmudi as the jury re- 
turned a verdict of guilty of murder in the first degree; 
whereas the jury might have returned a verdict in the see- 



PETERSON V. 8L088. 207 

July 1905] Sylla .UB. 

ond degree, had they been so inclined. There is great force 
in this contention, but we prefer to rest our decision upon 
tlie ground upon which it was based m the court below. 

The only remaining error discussed was the order deny- 
ing appellant's motion for a new triai In so far as the 
motion for a new trial was based on the rulings already 
discussed, it was properly denied. The only other question 
presented in support of the motion is the sufficiency of the 
evidence to sustain the verdict As already stated, the only 
substantial issue presented at the trial was the sanity or 
insanity of the appellant. The jury reached the conclusion 
that he was sane and responsible for his acts, and there 
is no apparent reason why this court should interfere with 
their verdict, which is supported by ample and competent 
testimony. 

Finding no error in the record the judgment is affirmed. 

Mount, C. J., Fullekton, Hadley, Ckow, Koot, and 
DtJNBAB, JJ., concur. 



(No. 5537. Decided July 18, 1906.) 



Marian E. Peteeson, Respondent, v. James Sloss, 

Appellant} 

Vendob and Pdbchaseb — Deed Befobe Patent — ^Recobding — Chain 
OF Title — ^Notice to Subsequent Pubchasebs. A deed by a home- 
steader prior to patent, after final proof and the issuance of the 
receiver's final receipt, is in the chain of title, although the receiver's 
receipt was not recorded, and the same transfers equitable title; and 
subsequent purchasers after issuance and recording of the patent are 
bound by the record of such former deed, from the patentee, 
although they had no actual notice thereof. 

Sabce — Pabtition — Pbiob Pubchasebs. A partition agreement, 
made by a tenant in common after contracting to convey his in- 
terests, is not binding upon subsequent purchasers from his grantee. 

Appeal from a judgment of the superior court for King 
county. Bell, J., entered November*!, 1904, upon findings 

1 Reported in 81 Pac. 744. 



208 PETERSON V. SLOSS. 

Opinion Per Rudkiit, J. [39 Wash. 

in favor of the plaintiff, after a trial before the court with- 
out a jury, in an action to quiet title. Reversed. 

E. C. Kriete and Steele & Brown (8. H. Steele, of oouiif 
sel), for appellant. 

W. L. Waters, for respondent* 

RuDKiN, J. — On the 19th day of November, 1895, after 

completing his five years' residence, one Rowland Evans 

made final proof for the southeast quarter of section 28, 

township 23 north, range 7 east, W. M., in King county, 

Washington, and received a receiver's final receipt tiberefor. 

This receipt was never filed for record. On November 27, 

1895, Evans conveyed an undivided one-half interest in said 
tract to the defendant James Sloas. The deed of conveyance 

was filed for record in the office of the county auditor of 
King county, on December 7, 1895. On the 26th day of 
October, 1901, Evans entered into an agreement with the 
defendants S. D. Eraser and J. J. Eraser, whereby Evana 
agreed to convey the entire tract to the Erasers. This agree- 
ment was filed for record on the 2d day of November, 1901. 
On the 6th day of September, 1902, a deed of conveyance 
of the entire tract was executed by Evans to the Erasers, 
and was filed for record on the same day. On the 25th day 
of March, 1903, the Erasers conveyed the entire tract to 
the plaintiff, Marian E. Peterson. This deed was filed for 
record on March 27, 1903. The plaintiff, Peterson, pur- 
chased the property for a valuable consideration, and with- 
out actual notice of the prior conveyance of an undivided 
one-half interest in the property from Evans to Sloss. On 
the 13th day of July, 1899, a homestead patent issued to 
Evans for said tract, and was filed for record in the auditor^s 
office on the 27th day of March, 1903. On the 21st day 
of March, 1902, Evans and Sloss entered into an agree- 
ment partitioning said tract between themselves, which 
agreement was filed for record on the 6th day of May, 1903. 



PETERSON V. SLOSS. 209 

July 1905] Opinion Per Kudkin, J. 

At the time of the commenoenieiit of this action, the land 
was vacant and unoccupied. The object of the action was 
to declare the plaintiff the owner in fee of the entire tract, 
and to remove a cloud from the title. The plaintiff had 
judgment according to the prayer of her complaint, and the 
defendant Sloss appeals. 

The sole question presented on this appeal is this: Was 
the record of the deed of November 27, 1895,. from Evans 
to the appellant Sloss, constructive notice of the claim of 
appellant, as against subsequent purchasers from Evans? 
We think that it was. Both parties place reliance on Say ward 
V. Thompson, 11 Wash. 706, 40 Pac. 379. In that case 
the respondents claimed title by mesne conveyances from 
the patentee of the government. The appellant claimed 
title under an indorsement on the final receipt to the effect 
that the holder of the receipt had sold all his right, title, 
and interest in the property therein described to one Meigs. 
This indorsement was neither acknowledged nor recorded. 
That case is not, therefore, directly in point here. In the 
opinion, however, the court says: 

"By omitting to take a formal conveyance and to have 
the same recorded when he might well have done so, we 
think Meigs was guilty of negligenoe and that appellant 
cannot be heard to say that the paper which Meigs elected 
to take was not such as the law entitled to be recorded," 

thereby implying, at leasts that, if Meigs had taken a formal 
conveyance and recorded the same, he and his grantees would 
have been protected. That was just the precaution taken 
by the appellant in this case. We find no fault with the 
authorities cited by the respondent, and agree with her 
ooimsel that the record is not constructive notice of a deed 
without the chain of title. We cannot agree, however, that 
the conveyance made by the holder of the receiver's receipt 
was without the chain of title. A conveyance made by a 
party before he acquires title to the property conveyed is, 



210 PETERSON V. SL0S8. 

Opinion Per Rudkin, J. [39 Wash. 

no doubtj without the chain of title, and had the patent in 
this case been the origin of Evans' title, the rule contended 
for would apply. The patent, however, was issued under 
the homestead law, and the respondent and her grantors 
knew, and were chargeable with notice^ that the patent was 
preceded by final proof, and that the entryman had full 
power to convey or incumber the property at any time after 
final proof was made. How would the recording of the 
final receipt have availed the respondent? True^ it would 
fix a time beyond which she need not look for conveyances 
by the entryman, but nothing more. She knew that Evans 
had title and the right to convey before the patent issued, 
and it was her duty to examine the record for sudi con- 
veyances. Had she done so, she would have discovered the 
deed to Sloss. Having failed in this, she failed in her 
duty, and must suffer the consequences. The deed from 
Evans to Sloss was executed at a time when Evans had 
full power and authority to execute the same, and the patent 
itself gave ample notice of such preexisting title and the 
incidental right to convey. The title was an equitable one, 
it is true, but the right to transfer it is acknowledged by 
all the authorities. 

The appellant asks to be awarded the portion of the prop- 
erty allotted to him under the partition agreement between 
himself and Evans; but, inasmuch as this agreement was 
made after the agreement on the part of Evans to convey 
the property to the Erasers was executed and recorded, such 
partition is not binding upon the respondent unlees she 
elects to ratify it. 

The judgment is reversed, with directions to enter a de- 
cree declaring the respondent the owner of an undivided 
one-half interest in the property in controversy, unless the 
parties agree upon some other disposition of the case. 

Mount, C. J., Fullebton, Hadley, Ckow, Eoot, and 
DuNBAB, JJ., concur. 



JOHNSON V. SEATTLE ELECTRIC CO. 211 

July 1905] Opinion Per Hadlet, J. 



(No. 5486. Decided July 18, 1906.) 

CiiBisTiAN JoiENSoN ct ah. Appellants, v. Seattle Electric 

Company, Respondent} 

Death by WBONoruL Act — ^Rioht of Action — Heibs Limited to 
Widow and Childben — Stabe Decisis. Upon the principle of stare 
decisis, the word "heirs" in Bal. Code, § 4828, descriptive of the 
persons who may maintain actions for the wrongful death of 
another, is restricted to the widow and children of the deceased, 
and cannot he extended to the widower on the principle that widow 
and widower can he used interchangeably in the statute. 

Actions — Joindeb — Fob Death by Wbongful Act and Funebal 
Expenses — ^Fatheb and Son Plaintiffs. A right of action in favor 
of a widower for funeral expenses, against one who caused the wrong- 
ful death of his wife, cannot be Joined with an action under the 
statute by a minor son for the death of his mother. 

Pleading — Demubbeb — ^Tbial — Dismissal on Failube to Amend. 
Where two causes of action are improperly joined, and a demurrer 
on that ground is sustained, a plaintlft whose complaint stated a 
good cause of action cannot complain of the dismissal of the action 
upon sustaining the demurrer^ when he elected not to amend his 
complaint. 

Appeal from a judgment of the superior court for King 
county, Albertson, J., entered October 28, 1904, dismissing 
an action for damages for wrongful death, upon sustaining 
a tiemurrer to the complaint. Affirmed. 

George Fowler and Root, Palmer & Brown, for appellants. 
Hughes, McMicken, Dovell & Ramsey, for respondent 

Hadley, J. — The plaintiffs in this action are, respectively, 
the surviving husband and minor son of Mattie Johnson, 
deceased. They jointly brought this action to iccover dam- 
ages on account of the death of said Mattie Johnson. They 
allege that death resulted from injuries received by her in 
a street railway accident, in Seattle, while she was a pas- 
senger upon one of the defendant's cars. In addition to 

1 Reported in 81 Pac. 705. 



212 JOHNSON V. SEATTLE ELECTRIC CO. 

Opinion Per Hadixt, J. [39 Wash. 

general damages, the plaintiffs allege that they have incurred 
great expense in and about the funeral and burial of the 
deceased, and that they have been damaged thereby. 

The defendant demurred to. the complaint upon two 
grounds, (1) that several causee of action have been in- 
properly united; (2) that the complaint does not state facts 
sufficient to constitute a cause of action as to Christian John- 
son. The demurrer was sustained. The order sustaining 
the demurrer recites that, in the opinion of the court, the 
claim for damages for the loss of the services, society, nur- 
ture, and counsel of the deceased is a separate and distinct 
cause of action from the claim for recovery on account of 
funeral and burial expenses; that the plaintiff Christian 
Johnson, the surviving husband, has no interest in the first 
mentioned claim; that the plaintiff Merinus Colmer John- 
son, the minor son, has no interest in the last mentioned 
claim, and that, therefore, said two claims cannot be prop- 
erly prosecuted in the same action. The demurrer was sus- 
tained on the ground that several causes of action were 
improperly united in the complaint. The order gave the 
plaintiffs leave to amend their complaint, but they elected 
not to amend and, on motion of the defendant for judgment 
against the plaintiffs, the motion was granted, and judgment 
was entered that plaintiffs, shall take nothing by their action. 
They have appealed from the judgment. 

Appellants urge that the surviving husband has a cause 
of action for the death of his wife, and that he may join 
with the child in bringing suit for such death, within the 
terms of Bal. Code, § 4828. This court held, in Noble v. 
Seattle, 19 Wash. 133, 52 Pac 1013, 40 L. R. A. 822, 
that the word "heirs," as used in that statute descriptive 
of the persons who may maintain actions for the death of 
others, is restricted to the widow and children of the de- 
ceased. That construction was followed in Nesbitt v. North- 
em Pac. R. Co,, 22 Wash. 698, 61 Pac. 141, and wss 
approvingly mentioned in Robinson v. Baltimore & 8. Miru 



JOHNSON V. SEATTLE ELECTRIC CO. .213 

July 1905] Opinion Per Hadlet, J. 

etc. Co.y 26 Wash. 484, 67 Pac. 274. The still later caae 
of Manning v. Tacoma R, & Power Co., 34 Wash. 406, 75 
Pac. 994, was appealed to this court for the frankly avowed 
purpose of effecting a reinvestigation of the question, to the 
end that Noble v. Seattle,* supra, might be overruled. In 
that case the court d^lined to reopen the subject, and de- 
clared that it considered the question as settled under the 
rule of stare decisis. 

Appellants say, however, that the righta of a surviving 
husband have not been involved in any of the decided cases. 
In the first case cited, the suit was brought by the father 
and mother ot the deceased ; in the second, by the mother ; 
and in the last, by the mother. The third case mentioned 
was not one directly involving a construction of the statute, 
since it was brought by the surviving widow and children, 
as to whose right to sue no question has ever been raised. 
It appears, therefore, that no case has before been presented 
to this court where the surviving husband was seeking by 
authority of this statute to recover for the death of his wife. 
Appellants argue that it is the spirit and intent of the 
statute that the widower and minor children shall be ac- 
corded the same rights in case of the wrongful death of the 
wife and mother as are given to the widow and minor chil- 
dren in case of the wrongful death of the husband and father. 
It is insisted that, under our community property system, 
which gives tp the spouses equal shares of all that is acquired 
by their joint efforts, it follows that they afe of e<}ual value 
to each other, and that the death of the wife must, in legal 
contemplation, constitute a pecuniary loss to the husband, 
exactly equal to her loss in case of his death. 

We need not undertake to analyze the argument. Whether 
it be sound or not is a question for legislative considera- 
tion. The right of either husband or wife to sue for the 
death of the other must depend ujwn legislation authorizing 
it, and if the statute in question does not authorize the hus- 
band to sue, then appellants' argument as to the mutual per- 



214 JOHNSON V. SEATTLE ELECTRIC CO. 

Opinion Per Hadley, J. [39 Wash. 

sonal and property relations of the two is of no avail. Under 

Hie rule of stare decisis, we think this cannot be said to 

be an open question. When the court formerly reached the 

conclusion that the word "heirs^" as used in the statute^ 

did not include parents, it did so only upon the theory that 

the term was limited to the persons theretofore specifically 

mentioned in the statute. In Noble v. Seattle, supra, the 

argument was concluded as follows: 

". . . the word 'heirs,' as used in § 138, should be 
held to include only those persons who are thereinbefore 
specifically mentioned, viz. : The widow or widow and her 
children, or child or children if no widow.' " 

Discussing the subject of stare decisis, in 26 Am. & Eng. 
Ency. Law (2d ed.), 171, the writer says: 

"A proposition assumed or decided by the court to be 
true, and which must be so assumed or decided in order to 
establish another propositioA which expresses the conclusion 
of the court, is as effectually passed upon and settled in that 
court as the very matter directly decided." 

See, also. School Trustees v. Stocker, 42 N. J. L. 115. In 
Brown v. Chicago etc. B. Co., 102 Wis. 137, 77 N. W. 748, 
78 N. W. 771, 44 L. R. A. 679, the court said: 

"It is a mistaken opinion that nothing is decided in a 
case except the result arrived at. All the propositions as- 
sumed by the conrt to be within the case, and all the ques- 
tions presented and considered, and deliberately decided by 
the court leading up to the final conclusion reached, are as 
effectually passed upon as the ultimate questions solved." 

With the construction already given this statute by this court, 
it cannot be held that the legislature intended to confer a 
right of action upon a surviving husband. If it had in- 
tended to confer so valuable a right upon a widower in his 
own behalf, it would doubtless have so said in express terms. 
Appellants cite decisions of this court to the point that 
"widow" and "widower" may become interchangeable terms 
in a statute. In Be Murphy's Estate, 30 Wash. 9, 70 Pac 
109 ; In re Feas' Estate, 30 Wash. 51, 70 Pac. 270. In 



JOHNSON V. SEATTLE ELECTRIC CO. 215 

July 1905] Opinion Per Hadlet, J. 

those cases the benefit of the children was the manifest end 
son^t by the statute, and not a direct benefit to the sur- 
viving husband. To effect the purpose of the statute it be- 
came necessary to read the word "widoV as "widower." 
Unless the legislative intention to use the terms interchange- 
ably is manifest, they should not be so considered. For 
especially apt reasoning in this connection, we refer to 
Western Union Tel. Co. v. McGilh 57 Fed. 699, 21 L. R. 
A. 818. Judge Sanborn, in delivering the opinion of the 
United States circuit court of appeals, eighth circuit, in 
that case;, involving the Kansas statute relating to actions of 
this character, reviewed an argument made by counsel similar 
to that made by appellants here. The statute under con- 
sideration was as follows: 

"When the death of one is caused by the wrongful act 
or omission of another, the personal representatives of the 
former may maintain an action therefor against the latter, 
if the former might have maintained an action had he lived, 
for an injury for the same act or omission. The action must 
be commenced within two yeara The damages cannot exceed 
ten thousand dollars, and must inure to the exclusive bene- 
fit of the widow and children, if any, or next of kin, to be 
distributed in the same manner as personal property of the 
deceased." 

The court was urged to hold that the word "widow," as used 
in the above statutei^ should be construed to mean "widower" 
in cases where the wife has been killed. Discusssing that 
argument, the court said as follows: 

"Finally, it is said that the word Vidow' in this statute 
ou^t to be construed to mean ^widower' in every case where 
the wife has been killed ; that the legislature must have in- 
tended to include him in the class of the widow and chil- 
dren, because he must often suffer great pecuniary loss by 
the death of his wife. If there was any ambiguity in this 
statute, we might speculate on the probable intention of the 
legislature, and consider who ought to be added to the first 
class which they have formed. We might consider that, 
where a husband is killed, who is the only support of aged 



216 JOHNSON V. SEATTLE ELECTRIC CO. 

Opinion Per Hadlet, J. [39 Wash. 

and infinn parents who have spent the beet years of their 
lives to educate him and establish him in business^ every 
consideration of justice and humanity demands that these 
parents should be counted as members of the class of the 
widow and children ; that when a married woman is killed, 
whose kindness, sympathy, and care have furnished the only 
consolation and support of an invalid sister, she ought to 
be added to this class; and that in every case those who 
suffer most severely from the death should be deemed the 
widow and diildren of the deceased, and should receive the 
exclusive benefit of the recovery in the action- 

"If we entered upon this inquiry it would not fail to occur 
to us, however, that when the legislature gave these damages 
to the widow and children they may have considered that 
the husband is, and ought to be, the provider for and sup- 
porter of the family ; that his death often leaves the widow 
and children helpless, without the power to earn the means 
needed to purdiase the necessaries and comforts of life; 
that the burden of supporting and providing for the family 
is seldom cast upon the wife ; that, where it is, the husband 
is sometimes unworthy to share in the damages for her 
death, and they ought to go to the children exclusively, and 
that, where it is no^ her death will not be the pecuniary loss 
to the family that the death of the husband must have been, 
since the supporter of the family still remains, and can pro- 
vide the means for its support We shall not enter upon 
these speculations. They present matters proper for the 
consideration of the legislature of the state of Kansas, but 
the terms of the statute are too dear to permit us to in- 
dulge in them. This statute does not put in its first class 
the infirm parents, the invalid sister, or the bereaved hus- 
band. It places no one there but the widow and children. 
To the pressing invitation to us to add others to the list, 
we answer in the words of the supreme court of Kansas: 
^We do not make the law. If there is any omission in the 
statutes, the remedy is with the legislature.' Limekiller v. 
Railroad Co,, 33 Kan. 83, 6 Pac. 401." 

Christian Johnson had, therefore, no cause of action for 
the loss of his wife. Respondent concedes that he is entitled 
to recover any amcnmt he may have paid for funeral ex- 
penses, but urges that he cannot join his action therefor 



WILLIAMS V. PACKARD. 217 

July 1905] Syllabus. 

with the action on behalf of the minor child for the loss of 
the mother. In this view we concur. If the father paid 
the amount from his own estate, then he is entitled to re- 
cover it for his own use. If it was paid from the community 
estate, in which appellants say the child has an interest, 
then it is recoverable by an administrator of the community 
estata In any event, therefore, the causes of action are im- 
properly joined. It is urged that the cause of action in 
favor of the minor son for the loss of his mother should 
have been permitted to stand. It was, however, improperly 
joined with another. This is a statutory groxmd of de- 
murrer, and the demurrer was properly sustained upon that 
groimd. The order sustaining the demurrer gave leave to 
amend, so that the son might have separately stated his cause 
of action. He declined to amend, and there remained noth- 
ing for the court to do but render judgment for the re- 
spondent. 

The judgment is affirmed. 

Mount, C. J., Fullerton, Rudkin, Ceow, and Dunbab, 
JJ., concur. 

Root, J., being disqualified, took no part. 



(No. 5539. Decided July 18, 1906.) 

Thomas H. Williams, Executor of the Will of William 
Tester, Deceased, Respondent, v. C. H. Packard, 

et al.. Appellants} 

Judgments — ^Revival — Change of Law — Contracts — Impairment 
OP Obligation — Statutes — ^Repeal. The act of 1897 repealing the 
law for the revival of Judgments, was an impairment of the obli- 
gation of, and unconstitutional as to, existing contracts, and a Judg- 
ment thereon, although entered after the passage of the act^ may 
be revived on motion notwithstanding the repealing statute. 

1 Reported in 81 Pac. 710. 



218 WILLIAMS V. PACKAKD. 

Opinion Per Hadley, J. [39 Waali. 

Appeal from an order of the superior court for Snohomish 
county, Denney, J., entered July 21, 1904, reviving the lien 
of a judgment, upon motion of the plaintiff, after overruling 
a demurrer to the motion. Affirmed. 

Bostwich & Mulvihill, for appellants. 
McOuinness & Miller, for respondent 

Hadley, J. — This appeal involves the revival of a judg- 
ment. The original judgment was rendered November 30, 
1897. On March 21, 1903, a motion to revive and continue 
was filed in the cause. The motion recites that, since the 
entry of the judgment^ the plaintiff in the action died, in- 
testate; that Robert Smallman and Thomas H. Williams, 
being designated by the will as executors thereof, were duly 
appointed as such, and that they have been the duly qualified 
and acting executors of the estate since the 8th day of Sep- 
tember, 1900. The motion was verified by said Robert 
Smallman. After the filing of the motion, said Robert 
Smallman died and, by consent of the defendants^ said 
Thomas II. Williams, as executor, was substituted as the 
party plaintiff instead of the plaintiff William Tester, de- 
ceased. The motion further recites that the judgment re- 
mains unreversed and unsatisfied; that there has been paid 
thereon the sum of $355; and that there is still due and 
unpaid a balance of $1,301.10, with interest and cost& The 
defendants demurred to the motion, and the same was over- 
ruled. Thereafter, on Jime 21, 1904, an order was entered 
reviving tlie judgment in the total sum, including principal 
and interest, of $1,906.54, together with costs of the revival 
proceeding. The defendant C. H. Packard has appealed 
from the order of revival. 

It is assigned that the court erred in overruling the de- 
murrer to the motion to revive, and also in entering the 
order of revival. These may be discussed together. This 
proceeding is prosecuted under 2 Hill's Code, §§ 462, 463. 



WILLIAMS V. Packard. 219 

July 1906] Opinion Per Hadley, J. 

Section 468 provides that the revival proceeding may be 
commenced within six years from the rendition of the judg- 
ment. This proceeding was so commenced. The legislature 
of 1897 provided that, after the expiration of six years 
from the rendition of any judgment, it shall cease to be 
a lien or charge against the estate or person of the judg- 
ment debtor, and that no proceedings shall ever be had by 
which the duration of a judgment shall be extended or con- 
tinued in force for any longer period than six years from 
the date of the original judgment. Bal. Code, §§ 5148, 5149. 
This court has held that, as to judgments existing prior to 
that law, the statute is imconstitutional as impairing the 
obligations of contracts. Betttnan v. Cowley, 19 Wash. 207, 
53 Pac. 53, 40 L. R. A. 815; Palmer v. Laheree, 23 Wash. 
409, 63 Pac. 216; RaugU v. Lewis, 24 Wafih. 47, 63 
Pac 1104. 

The original judgment in the case at bar was rendered 
after the statute of 1897 took effect. The appellant argues 
that the record here does not show that the judgment was 
founded upon a contract, and that, for aught that appears, 
it may have been founded upon a tort The motion for 
revival was, however, filed in the original cause, and the 
first paragraph of the motion expressly refers to the judg- 
ment, and makes it a part thereof. A supplemental tran- 
script brought here by respondent sets out the judgment 
itself, together with the court's findings, by which it appears 
that the judgment was upon a promissory note, which was 
secured by mortgage upon personal property. A decree was 
also entered foreclosing the mortgage. The findings show 
that the note and mortgage were executed September 5, 1893. 
The judgment was therefore founded upon a contract which 
existed prior to the law of 1897. 

If, as has been held, that statute is void as to judgments 
existing when the law took effect, for the reason that it im- 
pairs the obligations of the contracts upon which the judg- 
ments were founded, jbhen is it void as to judgments rendered 



220 WILLIAMS V. PACKARD. 

Opinion Per Hadlet, J. [39 Wash. 

after the new law was in force, but founded upon contracts 
executed prior to that law? The contract is the principal 
thing, and the judgment exists by reason of the contract 
The reason assigned for the decisions above cited was that 
the new law impaired the value of the contracts themselves, 
and no distinction in principle can be made in this connec- 
tion between prior contracts which were merged in judg- 
ments before the new law and similar ones which were not. 
The value of the contract is affected in the one case as much 
as in the other. In Swinburne v. Mills, 17 Wash. 611, 50 
Pac. 489, 61 Am. St. 932, it was held that the laws existing 
at the time of making a contract enter into it and become 
a part of it, and that one who is entitled to enforce the obli- 
gation of a contract is also entitled to protection against a 
change in existing remedies, when their nature and extent 
are so changed as to materially affect his rights under his 
contract as they existed when it was made. See, alsoy 
Canadian etc. Trust Co. v. Blake, 24 Wash. 102, 63 Pac. 
1100, 85 Am. St. 946. . The principle discussed and de- 
cided in the above cases is controlling here^ and the precise 
question involved in this case was also decided adversely to 
appellants' contention in Fischer v. Kittinger, ante p. 174, 
81 Pac. 557, filed July 14, 1905. It was therefore not error 
to revive this judgment in pursuance of the law which en- 
tered into, and became a part of, the contract from its 
inception. 

The judgment is affirmed. 

Mount, C. J., Fui.lertqn, Eudkin, Eoot, Ceow, and 
DuNBAB, JJ., concur. 






STATE V. NELSON. 221 

July 1905] Syllabus. 

(No. 6443. Decided July 18, 1906.) 

The State op Washington, Respondent, v. P. H. Nelson, 

Appellant} 

Cumin AL Law — ^Adultery — Information — Ebbonbous Designa- 
tion OF Offense— Living in a State of Adultery. An information 
plainly charging the offense of living in a state of adultery, is not 
defective on account of a recitation erroneously designating the 
offense as the crime of adultery^ which is not punishable under 
our statutes. 

Same — Cebtaintt. An information is not uncertain in that it 
may charge the offenses of adultery, living in a state of adultery, 
cohabitation, or lewdness, when the intent to charge the offense of 
living in a state of adultery is plain to a person of common under- 
standing. 

Same. Such an information is not bad for duplicity. 

Same — Pasties Defendant. In a prosecution for living in a 
state of adultery, it is not necessary to Join the alleged paramour 
as a defendant. 

Same — Certainty as to Time. An information for living in a 
state of adultery, charging the commission of the crime between 
certain dates, is not uncertain as to time. 

Criminal Law — Orders — Recitals — Copy of Information. An 
order of arraignment reciting the delivery of a copy of the infor- 
mation cannot be contradicted by ex parte affidavits. 

Same — ^Adultery — Evidence of Previous Acts. In a prosecution 
for living in a state of adultery, the conduct of the parties previous 
to the date charged may be shown. 

Same — Marriage of Paramour — Harmless Error. In a prose- 
cution for living in a state of adultery, the state has a right to prove 
the marriage of the alleged paramour and the absence of her hus- 
band, as part of the surrounding circumstances; and if the marriage 
was immaterial, it was not prejudicial. 

Same — Adultery of Paramour — Birth of Child — Harmless 
Error. In a prosecution for living in a state of adultery with a 
married woman, it is competent for the state to prove that she 
gave birth to a child more than twenty months after she had seen 
or cohabited with her husband, as one step toward proving the 
ultimate fact of adultery with the accused; and if he was not 
connected therewith he was not prejudiced. 

1 Reported in 81 Pac. 721. 



222 STATE V. NELSON. 

Opinion Per Rudkin, J. [39 Wash. 

Same — ^Mabbiags — ^Evidence of — Competency. Testimony tend- 
ing to show a marriage by a minister of the gospel, that the parties 
then promised to take each other as husband and wife, and con- 
tinually lived together and held themselves out as such, is competent 
proof of a marriage; the statutory provision for proof by certificate 
being cumulative. 

Trial — Objections to Testimony — Sufficiency — Appeal and 
Ebrob — ^Review. Where it is sought to qualify a former wife as a 
witness by showing a divorce, an objection that evidence offered to 
prove the divorce was "incompetent, irrelevant and immaterial," 
does not raise the objection that it was not the best evidence, and 
will not be entertained for the first time in the supreme court 

WrrNESSES — Competency — Divorced Wife. The divorced wife of 
the accused is a competent witness against him, except as to com- 
munications during marriage. 

Same — Husband of Pabamoub — ^Adultery — Evidence. The hus- 
band of the alleged paramour of the accused is a competent witness 
against one accused of living in a state of adultery, when the para- 
mour is not on trial or charged with crime. 

Same — ^Adulteby — Evidence — ^Lettebs or Pabamoub to Husband — 
Loss of Pbivilege — Impeachment of Witness. Where an alleged 
paramour was offered as a witness to prove that she had not lived 
in a state of adultery with the accused, a letter written to her hus- 
band, inconsistent with her testimony, loses its character as a 
privileged communication when it is produced by the officers of 
the state, and is competent for the purposes of impeachment. 

Appeal from a judgment of the superior court for King 
county, Hatch, J., entered July 5, 1905, upon a trial and 
conviction of the crime of living in a state of adultery. 
Affirmed. 

James E. Bradford, for appellant 

Kenneth Mackintosh and Hermon W. Craven, for re- 
spondent. 

Rudkin, J. — The defendant was convicted of the crime 
of living in a state of adultery, and prosecutes an api)eal 
from the judgment and sentence of the court. The infor- 
mation recites that the appellant is accused of the crime of 
adultery committed as follows* 

"He, the said P. H. Nelson, in the county of King, State 
of Washington, on the 25th day of May, 1903, and theace 



STATE V. NELSON. 223 

July 1905] Opinion Per Kudkin, J. 

continuously until about the 15th day of July, 1903, did 
wilfully, unlawfully and feloniously live and cohabit in an 
open and notorious state of adultery with one Paulina Smith, 
and did then and there have carnal knowledge of the body 
of the said Paulina Smith, the said Paulina Smith being 
then and there a female person other than the wife of the 
said P. H. Nelson, and being then and there the lawful 
wife of Barney Smith, then and there living in Alaska, and 
the said P. H. Nelson having then and there a lawful wife 
living in Seattle, King county, Washington, to wit : one Julia 
Nelson." 

The appellant urges several objections to the sufficiency of 
this information. 

(1) It is claimed that the information charges the crime 
of adultery, and that there is no such crime under the laws 
of this state. True, the information recites that the appellant 
is accused of the crime of adultery, but the sufficiency of an 
information does not depend upon the name by which the 
prosecuting officer may designate the crime. A wrong desig- 
nation of the crime charged, or the absence of all designa- 
tion, will not vitiate an information which is otherwise 
sufficient. The information before us plainly charges the 
crime of living in a state of adultery under Bal. Code, § Y231, 
and is therefore sufficient 

(2) It is claimed that it is uncertain whether the infor- 
mation charges a crime under Bal. Code, § 7230, § 7231, 
or § 7238. Section 7230 defines adultery, but does not de- 
fine any crime or prescribe any penalty. Section 7231 
defines the crime of living in a state of adultery. Section 
7238 defines the crime of lewd and vicious association and 
cohabitation by unmarried persons, or open and gross lewd- 
ness or indecent or obscene exposure of his or her person, 
or of the person of another, by any man or woman married 
or unmarried. It seems to us a person of common under- 
standing can readily understand what is intended by this 
information and what crime is charged. If so, the require- 
ments of the law are satisfied. 



224 STATE V. NELSON. 

Opinion Per Rudkin, J. [39 Wash. 

(3) It is claimed that Paulina Smith should have 
been joined as a defendant. This was unnecessaty. Bishop, 
Statutory Crimes (3d ed.), § 670; Wharton, Crim. Law 
(10th ed.), § 1730; 1 Ency. Plead. & Prac, p. 308; State 
V. Dingee, 17 Iowa 232. 

(4) It is urged that the information is uncertain as to 
time. Where an information charges a continuing offense, 
such as living in a state of adultery, it is proper to allege 
the commission of the crime between certain dates as was 
done in this case. State v. Way, 5 Neb. 283; Common- 
wealth V. Wood, 4 Gray 11. 

(5) Again it is urged that the information is bad for 
duplicity. This assignment is answered by what has been 
said as to uncertainty as to the crime charged, as is also 
the further assignment that the court should have required 
the state to elect between the different crimes charged. As 
we view the information it charges but one crime in one 
form only. 

(6) It is claimed that the appellant was not furnished 
with a copy of the information. The order of arraignment 
recites that a certified copy of the information was delivered 
to the appellant in open court and this record cannot be 
contradicted by an ex parte affidavit. 

(7) It is assigned as error that the court admitted testi- 
mony relating to the conduct of the appellant and his alleged 
paramour three months prior to the date alleged in the in- 
formation. In this class of cases such testimony is always 
competent. Underbill, Crim. Evid., p. 444; State v. Wood, 
33 Wash. 290, 74 Pac. 380. 

(8) It is assigned as error that the court admitted evi- 
dence of the marriage of Paulina Smith, and that such evi- 
dence was incompetent and immaterial. The competency of 
this testimony we will consider hereafter. If immaterial, 
it is not prejudicial. Furthermore, the state had the right 
to prove all the surrounding circumstances^ including the 



STATE V. NELSON. 225 

July 1905] Opinion Per Rudkin, J. 

fact that Paulina Smith was married and that hor husband 
was absent in Alaska. 

(9) It is assigned as error that the state was permitted 
to cross-examine its own witness, that the state's witnesses 
were allowed to repeat their testimony and that the court 
admitted evidence of conversations held in the absence of 
ihe appellant. The record furnishes no basis for these 
assignments. 

(10) It is assigned as error that the court admitted evi- 
dence tending to show that Paulina Smith gave birth to a 
child early in the year 1904. It appears that the husband 
of Paulina Smith was continually absent in Alaska from 
the month of May, 1902, until the month of September, 
1903. Notwithstanding the absence of her husband and 
the good reputation for virtue and chastity which she estab- 
lished at the trial, the fact seems to remain that she gave 
birth to a child more than twenty months after she had 
seen or cohabited with her husband. The state could not 
prove its entire case at once. The fact that Paulina Smith 
committed adultery with some person was a circumstance 
the state had a right to prove. If the appellant was not 
connected therewith, he was not prejudiced thereby. If he 
was connected therewith, it established adultery on his part 
at leasts and this was an important step toward proving 
the ultimate fact of living in a state of adultery. State 
V. Wood, supra; State v. Fetterly, 33 Wash. 599, 74 Pac. 810. 

(11) It is next assigned as error that there was no compe- 
tent proof of a marriage between the appellant and Julia Nel- 
son, his alleged wife. The testimony offered tended to show 
that the appellant and said Julia Nelson were married by a 
minister of the gospel in the territory of Dakota in the 
year 1883 ; that in the presence of the minister and of wit- 
nesses they promised to take each other as husband and 
wife, and that the minister then declared them to be such. 
The testimony further shows that they lived together oon- 

15— 39 WASH. 



226 STATE V. NELSON. 

Opinion Per Rudkin, J. [39 Wash. 

tinually thereafter as husband and wife and held themselves 
out as such. Under all the authorities this was competent 
proof of marriage. Bal. Code, § 7232, cited by appellant, 
provides for proof of marriage by a recorded certificate of 
the marriage or a certified copy thereof, but this method is 
cumulative and does not exclude other methods of proof. 
19 Am. & Eng. Ency. Law (2d ed.), 1197; Wharton, Crim. 
Evid., § 173; Underbill, Crim. Evid., p. 445; People v. 
Stokes, 71 CaL 263, 12 Pac. 71; Summerville v. Summer^ 
ville, 31 Wash. 411, 72 Pac. 84; In re itcLaughlin's Estate, 
4 Wash. 570, 30 Paa 651, 16 L. R. A. 699; State v. 
McGilvery, 20 Wash. 240, 65 Pac 115. In the last case 
cited this court says: 

"The proof of the performance of a marriage ceremony 
by an officer authorized to perform it raises a presumption 
in favor of its legality. People v. Schoonmdker, 75 X. W. 
(Mich.) 439. *The testimony of a witness present at the 
marriage, is ordinarily admissible and adequate proof, unless 
the law requires official evidence.' Wharton, Criminal Evi- 
dence (9th ed.), § 173. See, also, Miles v. United States, 
103 U. S. 304; Nance v. State, 17 Tex. App. 389; State 
V. Schaunhurst, 34 Iowa, 547 ; 3 Kice, Evidence, § 529." 

(12) After the commission of the acts of adultery 
charged in the information, Julia Nelson obtained a divorce 
from the appellant. The appellant in this court objects to 
her competency as a witness against him on the ground that 
there was no competent proof of a divorce. The respondent, 
on the other hand, contends that she was a competent wit- 
ness, whether divorced or not, as the crime of living in a 
state of adultery on the part of the husband is a crime against 
the wife, and therefore by the express terms of the statiite 
she is rendered competent. Whether the wife is a competent 
witness against the husband in a prosecution of this kind 
is an important question upon which the authorities are 
divided, and we do not find it necessary to decide the ques- 



STATE V. NELSON. 227 

July 1905] Opinion Per Rudkik, J. 

tion on this appeal. Testimony was offered and received 
to -the effect that Julia Xelson was not the wife of the ap- 
pellant at the time of the trial, and that they had been 
divorced. The only objection interposed to this testimony 
was after the testimony was in and upon the ground that 
the testimony was "incompetent, irrelevant, and immaterial." 
This objection was not sufficient to raise the question that 
a certified copy of the decree of divorce was the best evi- 
dence of the fact that a divorce had been granted. 8 Ency. 
Plead. & Prac, 226 ; Kenosha Stove Co. v. Shedd, 82 Iowa 
640, 48 K W. 933 ; Guarantee Loan & T. Co. v. Oalliher, 
12 Wash. 507, 41 Pac. 887 ; Price v. Scott, 13 Wash. 574, 
43 Pac. 634; Sackman v. Thomas, 24 Wash. 660, 64 
Pac. 819. 

An objection of this kind will not be entertained for the 
first time in this court. Had this particular objection been 
called to the attention of the trial court, it might readily 
have been obviated by producing the decree of divorce, which 
was apparently on file in the same court. Julia Nelson 
was, therefore, a competent witness against the appellant, 
except as to communications made by one to the other during 
marriage, and it is not claimed that any such communica- 
tions were offered or received. 30 Am. & Eng. 'Ency. Law 
(2d ed.), 950; Wharton, Evidence (3d ed.), § 429; Green- 
leaf, Evidence (16th ed.), § 337; Inman v. State, 65 Ark. 
508, 47 S. W. 658; People v. Marble, 38 Mich. 117; 
Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec 255. 

(13) It is next urged that Barney Smith, the husband 
of Paulina Smith, the alleged paramour of the appellant, 
was not a competent witness against the appellant Paulina 
Smith was not on trial, or charged with crime, and this 
objection is not tenable. UnderhiU, Crim. Evid., p. 234; 
Wharton, Crim. Evid. (9th ed.), § 396. A witness cannot 
be said to be examined for or against one who is not a party 
to the proceeding. People v. Langtree, 64 Cal. 256, 30 
Pac. 813. 



228 STATE V. NELSON. 

Opinion Per Kudkin, J. [39 Wash. 

(14) Paulina Smith was offered as a witness by the 
appellant, and denied that she ever had intercourse, or lived 
in a state of adultery, with him. For the purpose of im- 
peachment, the state offered in evidence a letter written by 
the witness to her husband in Alaska, which it was claimed 
contained certain admissions inconsistent with her testimony 
at the trial. This was objected to, on the ground, among 
others, that it was a communication between husband and 
wife and therefore incompetent. This letter was produced 
and offered in evidence by the officers of the state, and had 
therefore lost its character as a privileged communication. 
Underbill, Crim. Evid., p. 234; Wharton, Crim. Evid. (9th 
ed.), 398; State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; 
State V. Buffington, 20 Kan. 599, 27 Am. Rep. 193 ; People 
V. Hayes, 140 N. Y. 484, 35 K E. 951, 37 Am. St 572, 
23 L. R. A. 830. 

Appellant contends that the letter was not competent evi- 
dence as against him, but it was not offered for that purpose. 
It was. offered for the purpose of contradicting his main 
witness on the question of the relations existing between her 
and the appellant, and her testimony as to such relations 
was certainly material. In view of the statements attributed 
to both the appellant and her alleged paramour by a num- 
ber of the witnesses, we think the letter, though somewhat 
enigmatical, was competent to go before the jury. 

We have examined the instructions given and the requests 
refused, and are satisfied that the law was fairly and cor-, 
rectly given to the jury, and that the substance of the ap- 
pellant's requests, so far as proper or material, was embodied 
in the charge of the court. Owing to the length of this 
opinion, we must decline to review the testimony on this 
appeal further than to say that we have carefully considered 
it, as well as all the errors assigned; and, after such con- 
sideration, we fell satisfied that every right of the accused 



CARSTENS V. ALASKA STEAMSHIP CO. 229 

July 1905] Statement of Case. 

was carefully safeguarded by the court below, and that the 
verdict is fully sustained by the evidence. 
The judgment is therefore affinned. 

Mount, C. J., Fullerton, Hadley, Ckow, and Dunbab, 
JJ., concur. 

Root, J., concurs in the result. 



(No. 5540. Decided July Id, 1905.) 

Thomas Cakstens et al.. Respondents, v. Alaska 
Steamship Company, Appellant} 

Appeal and Ebbob — ^Review — Findings Not Excepted to. Where 
the findings in an action at law tried without a Jury are not ex- 
cepted to« the evidence wiU not be reviewed on appeal. 

SAjfE — Statement of Facts — Affidavits on Motion fob New 
Tbial. The denial of a new trial will not be disturbed on appeal 
when the affidavit in support of the motion is not brought up in 
a statement of facts. 

Cabbiebs — ^Loss OF Goods — Jettison — ^Action by Consionob. In 
an action by a consignor for the loss of goods jettisoned at sea, 
findings to the effect that the plaintiff was the consignor of the 
goods, stating their value^ that defendant received the goods as a 
carrier, agreeing to deliver them to the consignees, and that de- 
fendant threw the goods overboard into the sea to the plaintiff's 
damage in a specified sum, are sufficient to sustain conclusions of 
law and a Judgment establishing defendant's liability for the loss. 

Appeal from a judgment of the superior court for King 
county, Griffin, J., entered July 20, 1904, upon findings in 
favor of the plaintiffs, after a trial before the court without 
a jury, in an action for the loss of goods jettisoned. Affirmed. 

The findings of fact establish the consignment by the plain- 
tiffs, and the acceptance by the defendant, of the goods, and 
their value, and include the following: 

"(7) That near Midway Island on Stephen's Pass on 
the trip to Alaska, while the defendant had the said meats 

1 Reported in 81 Pac. 691. 



230 CARSTENS V. ALASKA STEAMSHIP CO. 

Citations oi Counsel. [39 Wash. 

and property of plaintiffs on board said steamship, the de- 
fendant then and there threw said meat overboard into the 
waters of Stephen's Pass, and then and there left said meat 
in the waters of said Stephen's Pass." 

Ira Bronson and D. B. Trefeihen, for appellant, contended, 
among other things, that a justifiable jettison relieves the 
carrier from liability for the loss of goods. Smith v. Wright, 

I Caines (X. Y.) 43, 2 Am. Dec. 162; Oillett v. Ellis, 

II 111. 579; Van Syckel v. Ewiiig, Fed Cas. No. 16,877; 
Lawrence v. Minium, 58 U. S. 100, 15 L. Ed. 58; Price 
V. Hartshorn, 44 N. Y. 94, 4 Am. Rep. 645; Higgins v. 
Watson, Fed Cas. No. 6,470; Williams v. Grant, 1 Conn. 
487, 7 Am. Dec. 235; Hunt v. Morris, 6 Martin (La.) 676, 
12 Am. Dec. 489. The fact of a loss from a storm at sea 
casts the burden upon the plaintiff to prove negligence as 
the proximate cause of loss, and this was not done. 5 Am* 
& Eng. Ency. Law (2d ed.), 357; Jones v. Minneapolis etc, 
R. Co,, 91 Minn. 229, 97 N. W. 893, 103 Am. St. 607; 
The Warren Adams, 74 Fed. 413 ; 1 Am. & Eng Ency. Law 
(2d ed.), 597; National Bureau etc. Mfg. Co. v. The New 
Orleans, 20 Fed. 44 ; Gunnell v. Bird, 77 U. S. 304, 19 L. 
Ed. 913; 5 Am. & Eng. Ency. Law (2d ed.), 366; Lords 
Bailiff V. Trinity House, 39 L. J. Ex. 163. Giving the 
findings full effect, a consignor is not entitled to recover for 
loss of the goods w^ithout proof of ownership, or damage to 
himself, or tliat he is trustee for the consignees. McLachlan 
c. Branch, 39 Minn. 101, 38 X. W. 703 ; Fitzhugh v. Winian, 
9 X. Y. 559; Green v. Clarke, 12 X. Y. 343; Chamberlain 
V. West, 37 Minn. 54, 33 X. W. 114; Congar v. Galena 
etc. E. Co., 17 Wis. 492 ; Union Feed Co. v. Pacific Clipper 
Line, 31 Wash. 28, 71 Pac. 552; Thompson v. Fargo, 49 
X. Y. 188, 10 Am. Kep. 342. Prima facie, the consignee 
is the one to sue. Blum v. The Caddo, Fed. Cas. Xo. 1,573 ; 
Browne, Carriers, § 596; Hutchinson, Carriers, § 727; 
Madison etc. B. Co. v. Whitesel, 11 Ind. 55 ; Pennsylvania 



CARSTENS V. ALASKA STEAMSHIP CO. 231 

July 1905] Opinion Per Curiam. 

Co. V. Holderman, 69 Ind. 18. This presumption prevails 
until the contrary is shown. Pennsylvania Co. v. Poor, 103 
Ind. 553, 3 K E. 253. 

John E. Humphries and Harrison Bostwick, for respond- 
ents, contended, among other things, that under the common 
law the carrier is liable for goods stowed on deck and neces- 
sarily jettisoned. Jersey Steam Nav. Co. v. Merchants' 
Bank, 6 How. 344, 12 L Ed. 465; The Wellington, Fed. 
Cas. Xo. 17,384 ; Creery v. Holly, 14 Wend. 26. The burden 
is upon the carrier to show the necessity for the jettison 
from expected peril. The Maggie Hammond, 9 Wall. 435, 
19 L. Ed. 772 ; Propeller Niagara v. Cordes, 21 How. 7, 
16 L. Ed. 41; Nelson v. Woodruff, 1 Black (U. S.) 156; 
Clark V. Barnwell, 12 How. 272, 13 L. Ed. 130; Rich v. 
LamheH, 12 How. 347, 13 L. Ed. 1017; The Majestic, 166 
U. S. 375, 17 Sup. Ct 597, 41 L. Ed. 1039; Bank of Ken- 
tucky V. Adams Express Co., 93 XJ. S. 174, 23 L. Ed. 872. 
And that the vessel was seaworthy. The C. W. Elphicke, 
117 Fed. 279; The Manitou, 116 Fed. 60; The Frey, 106 
Fed. 319. The carrier's neligence is presumed from the fact 
of loss. Inman v. South Carolina B. Co., 129 U. S. 128, 
9 Sup. Ct. 249, 32 L. Ed. 612. Under the authorities the 
fact that the goods were thrown overboard, makes a con- 
clusive case. The Patria, 132 Fed. 971. 

Per Cukiam. — The defendant is engaged in the opera- 
tion of a line of steamboats, between the city of Seattle and 
Skagway, and other points in the district of Alaska. On 
the 6th day of March, 1899, the plaintiffs shipped certain 
quantities of meat from the city of Seattle, by the steamer 
^^Dirigo," operated by the defendant, a part of which was 
consigned to Frye-Bruhn & Co., at Skagway, and the re- 
mainder to one Birkmeir, at Haines Mission. The meats 
were thrown- overboard and abandoned, in the waters of 
Stej^ens pass, and this action was brought to recover dam- 



232 CARSTBNS V. ALASKA STEAMSHIP CO. 

Opinion Per Curiam. [39 Wash. 

ages for failure to deliver. The case was tried in the court 
below without a jury, and from the findings and judgment 
in favor of the plaintiffs, this appeal is prosecuted. 

In support of its appeal, the appellant claims, (1) that 
the steamer by which the goods were shipped became stranded 
on Midway island, in Stephens pass, and the meats in contro- 
versy were thrown overboard from necessity to save the 
ship; (2) that the respondents, as consignors, showed no 
right to maintain this action; (3) that the court allowed a 
recovery for the market value of the goods at the city of 
Seattle, instead of at the point of destination; and (4) that 
the court erred in denying the motion for a new trial. The 
respondents contend that the first three assignments are not 
open to review in this court, for the reason that there are 
no exceptions to the findings of fact This contention is well 
founded, and we can only consider the sufficiency of the 
findings to sustain the judgment. Rice v. Stevens, 9 Wash. 
298, 37 Pac. 440, and many subsequent cases in this court. 

The affidavit in support of the motion for a new trial is 
not embodied rn a statement of facts or bill of exceptions, 
and is not therefore properly before us. In any event, the 
affidavit, which appears in the transcript, fails to show that 
the evidence was newly discovered, or of such a character, as 
to warrant the granting of a new trial. Inasmuch as the 
findings of fact sustain the judgment of the court, the judg- 
ment must be affirmed, and it is so ordered. 



STATE BX REL. HAMMOND v. ROSS. 233 

Jnly 1905] Opinion Per Mount, C. J. 

(No. 5G03. Decided July 19, 1906.) 

The State of Washington^ on the Relation of T. W, 
Hammond, Respondent, v. E. W. Ross, as Commis- 
sioner of Public Lands, Appellant} 

Pdbuc Lands — Otsteb Reserves — State Oysteb Commission — 
County Boabds — Powers — Statute — Construction — Implied Repeal 
OF Provisions Relating to County Boards of Oyster Commissioners. 
Laws 1903, p. 340, creating a state oyster commission, prescribing 
duties practically the same as those of the county boards of 
oyster commissioners under Laws 1897, p. 299, and providing dif- 
ferent fees and penalties for the same acts and violations, was 
clearly intended to give the whole control of oyster reserves to the 
state commission to the exclusion of the county boards, and im- 
pliedly entirely repeals the earlier law relating to the powers of 
county boards, which therefore have no further authority. 

Appeal from a judgment of the superior court for Thurs- 
ton county, Linn, J., entered January 4, 1905, granting a 
writ of mandate as prayed for, upon overruling a demurrer 
to the petition. Affirmed. 

The Attorney General, and A. J. Falknor and E. C. Mac- 
donald. Assistants (Welsh Bros., of counsel), for appellant. 

B. F. Heuston, for respondent. 

Mount, C. J. — This appeal is from a judgment of the 
lower court, commanding the commissioner of public lands 
to act upon an application of relator to purchase certain tide 
lands without reference of said application to the county 
board of oyster land commissioners of Pacific county. The 
only question in the case is whether or not the act of March 
11, 1897, entitled "An act to secure to the public the con- 
tinued use of natural oyster beds," is superseded and re- 
pealed by implication by the act of March 16, 1903, entitled : 

"An act to create a state oyster commission, to define its 
duties and powers, to provide for the protection and man- 

1 Reported in 81 I'ac. 725. 



234 STATB EX REL. HAMMOND v. ROSS. 

Opinion Per Mount, C. J. [39 Wash. 

agement of the state oyster land reserves, to create a fund 
to be known as the Oyster Fund, providing for the issue of 
license to take oysters from the state oyster land reserves, 
providing for a penalty for violation of the provisions of 
this act, making an appropriation and declaring an emer- 
gency." Laws 1903, p. 340. 

The act of 1897, which is found on page 298 of the Laws 
of 1897, provides for the appointment by the governor of 
county boards, consisting of three persons, to be known as 
the "board of oyster land commissioners." The second sec- 
tion of the act is as follows: 

"In case of application to purchase oyster lands, the state 
commissioner of public lands shall, at the time of publica- 
tion of notice of application to purchase, require the county 
board of oyster land commissioners to immediately inspect 
the land applied for and report to the commissioner of 
public lands their findings as to the following facts : First : 
Whether the land or any portion thereof is a natural oyster 
bed. Second: Whether it be necessarv in order to secure 
adequate protection to any natural oyster bed, to retain in 
the public domain the land the application for the purchase 
of which has been made, or any portion thereof. Third: 
Whether the land or any portion therof, having been a 
natural oyster bed within ten years past, may reasonably be 
expected to again become such within ten years in the 
future." 

The act then provides for the procedure in case any of 
the questions are answered in the affirmative. Section 6 
provides for the sur\'ey and platting of natural oyster beds, 
and lands adjacent thereto sufficient for their protection. 
Section 7 provides that the commissioner of public lands 
shall declare such lands natural oyster bed reserves, and 
reserved from sale, lease, or conveyance. The balance of 
the act defines natural oyster beds, and the powers and duties 
of the board of oyster land commissioners in reference to 
caring for, protecting, and replenishing the same, and for 
the prosecution of offenders under the act. 
The act of 1903, which is found in the laws of that year 



STATE EX REL. HAMMOND v. ROSS. 235 

July 1905] Opinion Per Mount, C. J. 

beginning on page 340, provides for the creation of a state 
oyster commission, to consist of the governor, the commis- 
sioner of public lands, and the fish •commissioner. Sections 
2, 3, and 4 provide for the keeping of records of all meet- 
ings of the board, and the times and place of meeting, and 
the number which shall constitute a quorum to render a 
decision. Sections 5 and 6 provide as follows : 

"Sec. 5. It shall be the duty of the state oyster commis- 
sion, and they shall have power to: 

"(1) Examine all existing oyster reserves and to do or 
cause to be done such things as may be deemed advisable, 
to conserve, protect and develop said reserves as now estab- 
lished and that may be hereafter established, and to make 
such rules and regulations as may be found necessary or 
desirable to carry into effect the provisions of this act. 

"(2) To immediately examine all tide or oyster lands 
belonging to the state (except tide lands of the first class 
and lands hereinabove provided for) and to survey, plat and 
establish thereon what shall be and constitute oyster reserves 
for the future. 

"(3) To cause a survey or resurvey of all the state oyster 
land reserves now existing or to be established by the said 
commission, to be made before the first day of October, 1 903, 
or as soon thereafter as possible, and shall have each angle 
of the boundary line indicated by a stone of not less than 
one hundred pounds in weight and marked with the letters 
S. E. cut thereon in letters not less than three inches long 
and one-half inch deep, and to cause all oyster reserves to 
be platted, said plats to be filed in the office of the com- 
missioner of public lands and in the office of the auditor 
of the county wherein said reserves are located ; and in cases 
where the adjoining lands are used in whole or in part by 
private individuals for the production of oysters, stakes shall 
be kept standing on all of the angles of the boundary, the 
tops of which shall be at least four feet above high tide. 

"(4) Said commission may, when it seems to them ad- 
visable, close any portion of any of the reserves against the 
removal of oysters for any period of time, not longer than 
two years at one time: Provided, That such closed periods 
may be thereafter renewed, from time to time, not exceeding 
in all four years, by the commission. 



236 STATE EX REL. HAMMOND v. ROSS. 

Opinion Per Mount, C. J. [39 Wash. 

"(5) To care for and protect all reserves and to reseed 
and replant such as are in need of seed. 

"(6) To employ such patrolmen and deputies as may 
be necessary for the protection of oyster reserves and collect 
licenses and payment for seed oysters and to define their 
duties. 

"Sec. 6. The tide land within all oyster reserves estab- 
lished and surveyed and platted by said state oyster com- 
mission' shall be forever reserved from sale or lease." 

Section 7 provides for a license to take said oysters, and 
sections 8, 9, 10, and 11 provide for the time for taking 
seed, and what the application therefor shall contain, die 
provisions of the license^ and the fee therefor, which is a 
different fee from the one provided for in the act of 1897. 
Section 12 provides for an oyster fimd, and section 13 pro- 
vides for a penalty for a violation of the act by any person. 
This is a different penalty from the one provided in the act 
of 1897. Section 14 makes an appropriation for carrying 
the act into effect. 

There is no repealing clause to the later act> nor is there 
any reference therein to any other act, or to any subordinate 
body having charge of any of the oyster lands belonging to 
the state. This later act gives the whole of the state oyster 
lands into the hands of the state oyster commission with 
plenary power to, 

". . . examine all existing oyster reserves and to do 
or cause to be done such things as may be deemed advisable 
to consen^e, protect, and develop said reserves as now estal>- 
lished, and iJiat may be hereafter established, and to make 
sucJi rules and regulations as may be found necessary or 
desirable to carry into effect the provisions of this act," 

and to establish on all tide lands^ except tide lands of the 
first class, oyster reserves for the future. The duties of 
the state oyster commission, in reference to caring for and 
protecting the oysters and seed, are practically the same as 
those of tlie county board of oyster land commissioners under 
the old act. The fee for licenses to take seed is different, 



STATE EX REL. HAMMOND v. ROSS. 237 

July 1905] Opinion Per Mouirr, C. J. 

and the price of seed gathered is different, under the new act, 
and the penalty for a violation of the same provision in 
the two acts is different. 

It is apparent from a reading of the two acts that they 
cannot stand together in regard to protection, management, 
and control of the oyster reserves. The legislature of 1903 
clearly intended to give the whole control of these reserves 
into the hands of the state oyster commission, to the ex- 
clusion of the county board of oyster land commissioners, 
under the act of 1897. 

But it is argued by appellant that there is no provision 
in the act of 1903 covering the provisions contained in § 2 
of the act of 1897, above quoted, relating to the sale of tide 
or oyster lands. It is true that there is no express pro- 
vision of that kind in the act of 1903. The provisions in 
§ 2 of the act of 1897 were clearly for the purpose of pre- 
venting the sale of tide lands which were natural oyster beds 
and which were necessary for the protection of such beds, or 
which might reasonably be expected to become such beds, 
where applications were filed to purchase tide lands from 
the commissioner of public lands under other laws provid- 
ing for the conditional sale of certain tide lands fit for 
oyster culture. Some such provision as that contained in 
§ 2 of the act of 1897 was necessary to give the oyster 
commissioners control of the natural oyster beds. The sale 
of tide lands was vested in the commissioner of jyublic lands, 
and not in the board of oyster land commissioners. Ap- 
plications were referred to that board, so that natural oyster 
beds which had not been declared such might not be sold. 
The provisions were necessary for the purpose of control 
and preservation of the oyster beds by the board of oyster 
land commissioners, and "vCere for no other purpose. These 
provisions were not independent provisions, capable of en- 
forcement when the substantial law failed. The power of 
control being now vested in the state oyster commission by 
the later act, the provisions of the earlier act relating to the 



238 ENO V. SANDERS. 

Syllabus. [39 Wash. 

powers of the old board must necessarily fail. Furthermore, 
while the act of 1903 is more general, we think that the pro- 
vision of § 6, which reads that the state oyster commission 
shall have power^ 

"... to do or cause to be done such things as may 
be deemed advisable to conserve, protect, and develop said 
reserves as now established and that may be hereafter estab- 
lished, and to make such rules and regulations as. may be 
found neceseary or desirable to carry into effect the pro- 
visions of this act," 

includes the power to pass upon the questions contained in 
§ 2 of the act of 1897, and other questions of that character 
going to the protection of natural oyster beds. We are of 
the opinion, therefore, that all the provisions of the act of 
1897 above referred to are covered by the subsequent act 
of 1903, and that the former act is entirely repealed by 
the enactment of the later law. The county board of oyster 
land commmissioners, therefore, have no further authority 
under the law. 

The judgment appealed from is affirmed. 

Ckow, Root, Fui.i-erton, Eudkin, Hadley, and Dun- 
bar, JJ., concur. 



»• 



(No. 4882. Decided July 19, 1906.) 

B. P. Eno, Respondent, v. T. P. Sanders, Appellant} 

Appeal — ^Review — ^Findings — Weight or — ^EJvtoence. Findings of 
the trial court in an equity case wiU not be disturbed on appeal 
where the supreme court is unable to say that the weight of the 
evidence is against the conclusion reached below. 

Estoppel — Laches — Delay in Bringing Suit — Tncbease op Values. 
Mere delay, short of the statute of limitations, will not bar an 
action in equity to recover an interest in a mining claim that 
meanwhile had greatly increased in value, when the fact of plain- 
tiff's claims was at all times known, and there was no deceit or 

iReported in 81 Pac. 696. 



ENO ▼. SANDERS. 239 

July 1905] Opinion Per Fullebton, J. 

bad faiths and the increase in value was not due to development 
at the cost and risk of the defendant, but plaintiff was engaged in 
the development and was in a position to lose as much as the 
defendant In case of failure. 

Appeal from a judgment of the superior court for What- 
com county, Xeterer, J., entered June 1, 1903, upon find- 
ings in favor of the plaintiff, after a trial on the merits 
before the court without a jury, in an action to recover an 
interest in a mine. Affirmed. 

Shank & Smith, for appellant 

J. N. Phillips and Dorr & Hadley, for respondent. 

FuLLBETON, J. — In the summer months of the year 1900, 
one T. F. Jeffrey and three others discovered some five 
mining claims, in the Mount Baker mining district, and 
located the same under the mining laws of the United 
States. The claims as located were contiguous to each other 
and constituted a groups and are known in the record as 
the Excelsior group. Jeffrey also owned, at that time, an 
undivided two-sevenths interest in another group of claims, 
called the Bonanza group. On October 25, 1900, Jeffrey sold 
to the appellant, Sanders, one-fifth of his interest in the Ex- 
celsior group, and two-sevenths of his interest in the Bonanza 
group, giving him at that time a memorandum in writing, of 
which the following is a copy : 

"Seattle, Wash., Oct. 25th, 1900. 

"Eeceived from T. P. Sanders per A. D. Cameron the 

sum of one hundred dollars in full for ball of amount on 

two-sevenths (2-7) interest on the Bonanza Group also 

^one-fifth Int. in the Excelsior Group situated in Whatcom 

'Co. state of Washington. T. F. Jeffrey." 

On March 9, 1901, the appellant sold to the respondent, 

Eno, all the interest in both groups of claims that he Iiad 

acquired from Jeffrey, executing and delivering to him a 

bill of sale in the following language: 

"For and in consideration of the sum of Two Hundrel 
and fifty (250) dollars, I hereby sell, transfer, assign, and 



240 ^^O ^- SANDERS. 

Opinion Per Fuixeston, J. [39 Wash. 

warrant to B. P. Eno a 2-7 interest of T. F. Jeffrey interest 
in the Bonanza Group, consisting of nine (9) claims, and a 
one fifth interest of T. F. Jeffrey interest in the Excelsior 
Group consisting of five (5) claims, situated in Whatcom 
Coimty and State of Washington; being the same interest 
assigned to me by T. F. Jeffrey, the original of which is 
hereto attached, and said instrument being dated Seattle, 
Wash., Octol^r 25, 1900, and recorded January 28, 1901, 
at 8 :50 A. M. in Vol. 5 of M. C, page 523 in the records 
of Whatcom County, State of Washington. 

^^These claims are located in Whatcom county, state of 
Washington, and are known as the Bonanza group of nine 
claims; & the Excelsior Group of five claims, all of which 
are on Record in said County and State. The title to 
which I hereby warrant and defend to the interests of the 
said B. P. Eno as set forth in said instrument hereto 
attached. 

''In Witness Whereof I have hereunto set my hand this 
9th day of March, 1901. T. P. Sanders." 

While the matter remained in this condition the owners 
of the several claims decided to form corporations to take 
title to and work the same; and to that end incorporated 
the Great Excelsior Mining Company, and transferred to 
it the group of claims known as the Excelsior group, and 
also incorporated the Hoosier Mining Company, and trans- 
ferred to it the Bonanza groiip of claims. The stock of 
the respective corporations was treated as fully paid up 
by the transfers so made^ and, after deducting a certain 
amount to be sold as treasury stock, the remainder was 
directed to be distributed to the owners of the several in- 
terests in the claims in the proportion that such several 
interests bore to the amount distributed. The distributive 
shares belonging to the appellant and respondent were issued 
in the name of, and delivered to, the appellant, who turned 
over to the respondent such part thereof as he contended 
the respondent was entitled to by reason of the bill of sale 
before referred to. The respondent conceived that he had 
not received his just proportion, and brought this action to 



BNO V. SANDERS. 241 

July 1905] Opinion Per Fullerton, J. 

compel the appellant to deliver to him the balance claimed 
by him. After a trial of the issues between the parties, the 
court found that the appellant had given him such propor- 
tion of the stock in the Hoosier Mining Company as his 
interest represented, but that he was the owner of a one-fifth 
of one-fourth in the Excelsior group, and entitled to 50,000 
shares of the capital stock of the Great Excelsior Mining 
Company, and that the appellant had turned over to him only 
25,000 shares thereof. A decree was entered directing that 
the remainder be delivered. This appeal is from that decree. 

The appellant, in this court, makes two principal con- 
tentions. He contends, first, that it was understood between 
the appellant and respondent, at the time the bill of sale 
was executed, that a one^fortieth interest instead of a one- 
twentieth interest in the Excelsior group of mining claims 
was conveyed thereby, and that the parties by their subse- 
quent conduct construed the transfer in that way ; and, sec- 
ond, that, inasmuch as the respondent did not bring this 
action until some two years after the sale was made, he is 
guilty of laches, and ought not now to be permitted to 
recover. 

The first 4juestion is not entirely free from difficulty. The 
bill of sale from the appellant to the respondent describes 
the interest conveyed in the claims here in question, the 
Excelsior group, as a one-fifth interest of the Jeffrey in- 
terest, which, it goes on to recite, is the same interest the 
appellant acquired from T. F. Jeffrey. Turning to the loca- 
tion notices, which were offered in evidence, it is found that 
each of them is signed by four persons as locators, of which 
Jeffrey was one. The legal presumption would therefore be 
that he was the owner of a one-fourth interest in the group, 
and the conclusion reached by the trial court would seem 
to be justified. But the appellant contends that Jeffrey's 
interest in the claims, instead of being a fourth, was an 
eighth, for the reason that he had furnished Jeffrey with 

16-^ WASH. 



242 ENO V. SANDERS. 

Opinion Per i«'x7Llerton, J. [39 Wash. 

a gnib-stake, under an agreement that he was to have a 
one-half interest in any such property as Jeffrey should 
acquire during the prospecting trip in which the claims 
were discovered and located. He further shows that the 
parties entered into a written agreement at the time it was 
agreed to form -corporations, in which the interest of the 
respondent in the Excelsior group was described as a one- 
fortieth interest. 

Jeffrey, however, denies that he was prospecting on a 
grub-stake at the time the claims were located, and insists 
that he owned a quarter, instead of an eighth, interest in 
them at the time he made the sale to the appellant Other 
circumstances shown in the record, it seems to us, support 
this contention, and we think the weight of the evic^ence is 
with it In explanation of his act in signing the incorpora- 
tion agreement mentioned, the respondent testified that, when 
the agreement was first presented to him at the mines^ he 
refused to sign it, because it did not correctly represent his 
interests, and that later on the appellant came from Seattle 
to the mines for the purpose of procuring his signature, 
when a conversation was had between them which he relates 
in the following words: 

"He asked me why I didn't sign these papers, when he 
sent them up by Mr. Cameron. I told him, because th^ 
didn't set forth my interest, and he says, ^why, you are 
retarding the Company, you are holding it back by not sign- 
ing these papers,' and he said, ^it won't make any difference, 
there is simply an agreement to incorporate, it won't make 
any difference with your interest' I said, ^I don't like to 
sign anything that I don't understand and I refuse to sign 
away my rights in any way.' He says, *You located the 
Lizzie B and the water right.' I said, *Yes.' 'Well,' said 
he, 'I will give you 6,250 shares of stock more for your 
interest in the Lizzie B and the water right, if you will 
sign these papers.' I said, 'Very well, I will sign these 
papers, but I don't want to sij^ away my rights.' That 
was the condition under which my signature was placed 
here," 



ENO V. SANDERS. 243 

July 1905] Opinion Per Fullebton, J. 

This agreement, it will be remembered, was not, and did 
not purport to be, a conveyance of any interest in the mines 
from the respondent to the appellant, nor does the appellant 
now claim it to be such. He simply introduced it in evi- 
dence as tending to show an admission on the part of the 
resDondent to the effect that his interest in the claims was 
a one-fortieth, instead of a one-twentieth, as he was then 
claiming. But as the amount of this interest had all along 
been a matter of dispute between the parties, and as the 
respondent orally stated to the appellant at the time he 
signed it that it did not correctly represent his interest, it 
can scarcely be entitled to weight as an admission. Other 
circumstances and conversations are shown by each of the 
partie% tending to support their respective contentions, which 
we shall not attempt to review. On the whole, we are unable 
to say that the weight of the evidence is against the con- 
clusion reached by the court on this question, and, under 
the rule we have uniformly followed in such cases,, we will 
not disturb the court's findings. 

The second contention* of the appellant is based on the 
fact that the claims, between the time the respondent acquired 
his interest and the time he began his action, had developed 
from a mere prospect, having a speculative value only, to 
a mine having a market value of something like a quarter 
of a million dollars; and it is argued that it is unconscion- 
able and inequitable, in view of this fact, to allow the re- 
spondent to assert claims that he probably would not have 
asserted had the property not increased in value. 

Doubtless if the respondent had stood by and allowed the 
appellant to develop the property at his own cost and risk, 
in the belief that his interests were what he claimed them 
to be, equity would not have allowed ihe respondent to assert 
his claim, after so long a delay and after the property had 
BO changed in value, but such are not the facts as shown 
by this record. The respondent engaged with the appellant 
in the development of the mine. He was in a position to 



244 NOVELTY MILL CO. v. HBINZBRLING. 

Syllabus. [39 Wash. 

lose, in case the venture should prove a failure^ as much, if 
not more proportionally, than was the appellant. The ap- 
pellant knew at all times what the respondent's contentions 
respecting his interests were, and could have had them de- 
termined by suit at any time he so desired. There was 
no deceit, had faith, or even wrongful motives shown on 
the part of the respondent, and under such circumstances 
his right of action would not bar short of the statute of 
limitations, and there is no contention that the statute of 
limitations has run against his right of action. 

As we find no error in the record, the judgment appealed 
from will stand affirmed. 

Mount, C. J., Rudkin, Crow, and Dunbab, JJ., concur. 



(No. 5663. Decided July 20, 1906.) 

XovELTY Mill Company, Appellant, v. L. A. Heinzebling 

and The American Bonding Company of 

Baltimore, Respondents.^ 

Contracts — Breach — Defect in Building — Specifications at 
Fault. In an action for the breach of a building contract, it is 
immaterial that the contractor drew up a clause in the specifica- 
tions requiring tamping of concrete piers, which it is claimed by 
him caused the defects in the building, where the terms of the 
contract were not ambiguous, and there is no claim of fraud or 
overreaching. 

Same — Defects Due to Plaintiff's Superintendent — ^Principal 
AND Agent — Proof of Authority — Declarations of Agent. In an 
action against a contractor for defects in a building constituting a 
breach of the contract, in which the defendant claims that the defects 
were caused by plaintiffs expert superintendent who daily directed 
the work, testimony of the superintendent concerning his orders 
and directions about the work, tending to establish his authority, 
is admissible in connection with proof that the secretary of the 
plaintiff was often present and heard the directions without denying 
his authority; and the question of his agency was for the Jury. 

1 Reported in 81 Pac. 742. 



NOVELTY MILL CO. v. HEINZERLING. 245 

July 1905] Citations of Counsel. 

CoNTBACTS — Breach — ^Defects Created by Compliance With Con- 
tract — Evidence — Sufficiency — Question fob Jury. In an action for 
damages for the breach of a building contract, evidence tending to 
show that the defect in the building was caused by tamping concrete 
piers in the manner required by the contract, and insisted upon by 
the plaintiff, and that defendant substantially complied with the 
contract, raises a question for the jury, precluding the direction of 
a verdict for plaintiff. 

Same — Instructions. In such a case the contractor would not 
be liable for damages caused by tamping the concrete in the manner 
required by the contract, although it was faulty workmanship to 
tamp it, unless the Jury find that he failed to do the tamping as 
it should have been done. 

Indemnity — ^Action on Bond— Notice of Defect and Limitation 
OF Action. In an action upon an indemnity bond guaranteeing a 
building contract, it is necessary for the plaintiff, if it has knowl- 
edge of the defect, to give notice and bring suit within the time 
limited in the bond. 

Appeal from a judgment of the superior court for King 
county, Albertson^ J., entered November 26, 1904, upon the 
verdict of a jury rendered in favor of the defendants^ in 
an action for damages for the breach of a building contract. 
Affirmed. 

Andrew J, Balliet and James Kiefer, for appellant, con- 
tended, among other things, that a contractor, erecting a 
structure according to plans and specifications, is liable for 
failure to do the work in a workmanlike manner. Hunt 
V. Pennsylvania E. Co., 51 Pa. St. 475; Clark v. Pope, 
To 111. 128 ; Trustees of Monroe Female University v. Broad- 
field, 30 Ga. 1; School Trustees v. Bennett, 27 N. J. L. 
613, 72 Am. Dec. 373; Smith v. Clark, 58 Mo. 145. 

Ballinger, Ronald & Battle^ and F. E. Brightman, for 
respondent Heinzerling. The contractor was not liable if 
the defect was due to tamping required by the contract. 
Beswick v. Piatt, 140 Pa. St. 28, 21 Atl. 306. 

Charles S. Hills and Allan C. MacDonald, for respondent 
American Bonding Company. 



246 NOVELTY MILL CO. v. HEINZERLING. 

Opinion Per Hadlet, J. [39 Wash. 

IIadley, J. — This is an action upon a contractor's bond. 
The amended complaint avers that the defendant Heinzer- 
ling entered into a written contract to construct for the plain- 
tiff a warehouse, in accordance with plans and specifications 
attached to the contract. The specifications provided that 
the building should rest upon forty-five concrete piers, and 
the latter were also to be constructed by said defendant 
It was provided that, in constructing each pier, four piles 
should be driven to a good foundation, and cut off from 
one to three feet above ground, the earth to be excavated 
around the piling .one foot below the surface, and a casing 
built around the same made of two-inch lumber, the casing 
having a dimension of five feet by five feet at the base and 
three feet by three feet at the top, inside. It was also re- 
quired that the casing should be filled with concrete made 
with five parts sand and gravel and one part good Portland 
cement, said concrete to be well tamped. 

The plaintiff alleges that the contractor did not build the 
piers in accordance with the specifications, in that he failed 
to use a sufficient quantity of cement, and that he did not 
use a good quality of Portland cement; that he failed to 
properly tamp and place the concrete; that he threw the 
concrete, when mixed, into deep water so that the cement 
became separated from the sand and gravel; that, in conse- 
quence of such defaults on the part of the contractor, the 
piers are now falling down, and the warehouse is falling by 
reason thereof, and has become unsafe and useless. It is 
alleged that the contractor is financially unable to rebuild 
said piers and make said building such as is contemplated 
by the contract; that he has refused to do so; and that 
plaintiff will be obliged to reconstruct the same at an expense 
of $2,500, for which amount judgment is demanded. A 
supplemental complaint filed since the commencement of 
the action alleges that the piers have been rebuilt, and de- 
mands $1,500 damages in addition to the demand in the 
principal complaint. 



NOVELTY MILL CO. v. HEINZERLING. 247 

July 1905] Opinion Per Hadlet, J. 

The defendants answered separately, and each denied that 
there was any failure to construct the piers in accordance 
with the contract and specifications. They also each aiSirma- 
tively averred that, during the whole period of the con- 
struction, the workmanship and the material therein were 
under the direction, supervision, and approval of the officer 
or agent of the plaintiflF, placed in charge of the work by 
the latter; that at said time the plaintiflF informed the con- 
tractor that said agent was an expert as to work of that 
character ; that, after the completion of the contract, the plain- 
tiflF withheld payment for ten days until the work was fur- 
ther wholly inspected and approved by other comp^ent ex- 
perts, selected by the plaintiflF; that, having selected such 
experts, the plaintiflF caused the work to be thoroughly ex- 
amined by them, and they found that the entire work was 
done strictly in accordance with the plans and specifications, 
and that thereupon the plaintiflF accepted the work. Other 
affirmative defenses interposed by the surety company we 
believe it is unnecessary to set out here. The cause was 
tried before a jury, and a verdict was ifetumed for the de- 
fendants. PlaintiflF moved for a new trial, and the same 
was denied. Thereupon judgment was entered for the de- 
fendants, and the plaintiflF has appealed. 

Appellant's counsel asked a witness who it was who drew 
the specifications for the piers. The respondents objected, 
and the court sustained the objection. This is assigned as 
error. It was claimed by the respondents that the tamping 
of the concrete under water had caused the defect in the 
piers, and expert witnesses testified to that eflFect. It was 
also claimed that the contractor was required by the con- 
tract to tamp it, inasmuch as the specifications contained 
the following: "Said concrete to be well tamped." Ap- 
pellant desired to show that the specifications were drawn 
by the contractor himself, but we are unable to see that 
such fact became material inasmuch as no fraud or over- 
reaching was charged by appellant The terms of the con- 



248 NOVELTY MILL CO. v. HBINZERLING. 

Opinion Per Haolet, J. [39 Wash. 

tract were plain and unambiguous. It is not claimed that 
appellant did not have ample opportunity to read and under- 
stand it before signing, and it is therefore immaterial who 
drew it. 

Error is urged upon the court's rulings in not sustaining 
objections to the testimony concerning the orders and direc- 
tions about the work, given by the miller Robertson. It 
was testified that Robertson was about the work daily, that 
he gave many directions concerning the work, and frequently 
ordered further tamping of the concrete after the contractor 
had ceased to tamp it. It is urged that this testimony was 
objectionable, for the reason that the agency of Robertson 
for appellant could not be established by his own acts and 
declarations. Standing alone, they were doubtless insuffi- 
cient, but it appeared that he was often about the work in 
company with the secretary of appellant corporation, the 
officer who had executed the contract for the appellant, that 
this officer frequently heard Robertson giving the directions 
concerning tamping and other things, and that he at no time 
intimated to the contractor that Robertson was not author- 
ized to so direct. Under such circumstances, the question 
as to Robertson's authority and agency was for the jury, 
and the objections were properly overruled. 

A number of assignments of error relate to instructions 
given, and to the refusal to give others requested by ap- 
pellant. It is urged that it was error to refuse to instruct 
the jury to return a verdict for appellant in the full sum 
demanded. We think such an instruction would have been 
erroneous, in view of the evidence. There was evidence to 
the effect that the piers were weakened by too much knock- 
ing and jarring, which ruptured the crystals of the cement 
while they were becoming set in the salt water; that the 
concrete was jarred by the tamping; that the contract called 
for the tamping; and that appellant not only observed the 
tamping and approved thereof, but insisted upon even more 
of it than the contractor was disposed to give; that appellant 



NOVELTY MILL CO. v. HEINZERLING. 249 

July 1905] Opinion Per Haolet, J. 

itself placed a heavy weight upon the floor over the piers 
before the cement was sufficiently set, and that this also had 
the effect of jarring and weakening the piers. There was 
sufficient evidence of a substantial compliance with the terms 
of the contract to leave the jury to say whether the piers 
were weakened by reason of any default or neglect on the 
contractor's part. 

Appellant further insists that it was error to refuse to give 
the following instruction: 

"Under the contract and specifications, it was the duty 
of Heinzerling to know how to tamp the concrete ii\ boxes 
for the piers, and if the jury finds that it was faulty work- 
manship to tamp the concrete in the water, and that it was 
so tamped, and that such tamping caused the defects in the 
piers, it was the negligence and unskillfulness of Heinzerling 
which caused the defects in the piers, and plaintiff is entitled 
to recover." 

In view of the terms gf the contract, which required tamp- 
ing, we think the instruction asked was erroneous. 
The following instruction was given : 

"Now, with regard to the charge of improper tamping: 
As I have said, if the contractor did what he was required 
to do by the contract, he would not be liable for any damage 
because of a fault in the contract itself, and if he was re- 
quired by the contract to tamp this concrete, and if the 
fall of tiie wharf was occasioned by the tamping of the 
concrete, the plaintiff could not recover, because under the 
contract he was required to tamp the concrete; but it is 
for you to say, under the evidence, whether in tamping the 
concrete he did it in the way that it should have been done, 
whether there was any defect in the tamping of this con- 
crete, and if you should find from the evidence that he did 
not tamp the concrete as it should have been done, or did 
not put it in place as it should have been put there, or did 
not mix it in the proper proportions, or did not use a suffi- 
cient quantity, and if you should find that on any of these 
accounts or for any of these reasons, the wharf fell, and 
the plaintiff was put to the expense of reconstructing it, then 
you would find for the plaintiff to the extent of $4,000, if 



250 NOVELTY MILL CO. v. HEINZERLING. 

Opinion Per Hadlet, J. [39 Wash. 

you should be satisfied that the plaintiff incurred that expense 
in that way." 

We think the above instruction comprehensively and cor- 
rectly covered the subject of tamping, under the issues and 
evidence. 

The complaint made under the fourth and fifth assign- 
ments of error we shall not discuss, inasmuch as we think 
the courts in general effect^ gave instructions covering the 
same points contained in the appellant's requests; and we 
think the same is true of the sixth, fifteenth, and seventeenth 
assignments, to the extent, at least, that no prejudicial error 
is involved therein. 

Error is urged upon the refusal to give the following 
instruction : 

"Any knowledge or information which the witness Robert- 
son, the miller an4 employee of the plaintiff company, may 
have gained as to the methods employed by the defendan*^ 
Ileinzerling in the construction of the forty-five concrete 
piers in question was not the knowledge of the plaintiff 
company, and cannot in any manner bind or control the 
plaintiff corporation, and the 'jury are instructed to disregard 
and not consider any such knowledge or information of said 
witness Robertson." 

Wo have already said that the question of Robertson's agency 
was, under the evidence, for the jury. The above requested 
instruction would have taken that question from the jury, 
and it was therefore properly refused. 

We think the instruction criticized imder the eighth as- 
signment of error was not erroneous. It stated, in effect, 
that the fact that the miller of appellant company was around 
the work and saw how it was being done, and the fact that 
he may have undertaken to direct how it should be done^ 
would not charge the mill company with notice, unless the 
miller was authorized by the company to look after the work, 
and was held out as its agent for that purpose, which lattpr 
fact the jury were to determine from the evidence. 



NOVELTY MILL CO. v. HEINZERLING. 251 

July 1905] Opinion Per Hadley, J. 

We find no error in the instruction concerning notice to 
the bonding company as to a breach of the contract. It was 
one of the defenses interposed by the bonding company that, 
if there was any defect in the work, the mill company had 
knowledge of it long before it notified the bonding company 
thereof. The bond required that immediate notice should 
be given, and that suit should be brought within six months 
after the first' breach. The instruction made it clear that, 
if the jury should find from the evidence that the mill 
company had knowledge of the defect, then it was its duty 
to at once notify the bonding company, and bring its suit 
within six months thereafter. The instruction left the jury 
to find whether appellant had knowledge of the defect, and 
failed thereafter to act in accordance with the terms of the 
bond. 

Complaint is made that some of the instructions were 
misleading and confusing in their terms. We do not find 
them so> and we believe the instructions, as a whole, fairly 
covered the law of the case, under the issues and evidence. 

We think it was not error to deny the motion for a new 
trial. The fact was fully submitted to the jury whether 
the defect in the piers was due to any violation of the 
terms of the contract on the part of the contractor. The 
verdict established that it was not caused by a breach of 
the contract, and we shall not disturb it. The judgment 
is affirmed. 

Mount, C. J., FulljSRton, Crow, Root, Rudkin, and 
DuNBAs, JJ., concur. 



262 CUSKER V. BERRYMAN. 

Opinion Per Rudkin, J. [39 Wash. 

(No. 6575. Decided July 20. 1906.) 

James Cuskeb, Appellant, v. R. J. Berbyman, Respondent} 

Elections — Contest — Time fob Taking — Declabing Result. The 
time for Instituting an election contest, under Bal. Code, §§ 1410, 
1430, does not commence to run until the county auditor has certi- 
fied to the election returns and issued a notice of election. 

Appeal from an order of the superior court far Walla 
Walla county, Brents, J., entered December 16, 1904, dis- 
missing an election confest, upon sustaining defendant's 
motion to quash the proceedings. Reversed. 

T. P. Gose and Francis A. Oarrecht, for appellant. 
John L, Sharpstein and Lester 8. Wilson, for respondent. 

RuDKiN, J. — This is an appeal from an- order dismissing 
an election contest for the reason that the same was not 
instituted within the time limited by law. This branch 
of the case was heard upon an agreed statement, from which 
the following facts appear: On the 16th day of Xovember, 
1904, after the election returns were received from each 
and every precinct of Walla Walla county, the chairman 
of the board of county commissioners, the prosecuting at- 
torney, and the county auditor met and organized as a 
canvassing board, for the purpose of canvassing the votes 
cast in tlie several precincts of the county. On that day 
the total of the votes cast in each precinct for each candi- 
date was ascertained and determined, and entered in a 
schedule prepared for that purpose. But the grand total 
of all votes cast for the different candidates, in all the pre- 
cincts of tho county, was not footed up or ascertained. The 
canvassing board thereupon directed one J. W. McGhee, 
a deputy county auditor, to compute the total number of 
votes cast for each candidate, in all the precincts^ on an 
adding machine, and adjourned. On the 19th day of 

1 Reported in 81 Pac. 686. 



CUSKBR V. BERRYMAN. 253 

July 1906] Opinion Per Rudkin, J. 

November, 1904, McGhee completed the work assigned 
him, and ascertained the total vote of each candidate in 
the county, from which it appeared that the appellant re- 
ceived a total of 1,864 votes for the oflSce of county assessor, 
and the respondent a total of 1,958 votes for the same office. 

No further action was taken by the board of canvassers, 
except that on the 21st day of November, 1904, the prose- 
cuting attorney and the county auditor compared the totals 
of the votes, as ascertained and entered in said schedule 
by McGhee, with two other facsimiles of such schedule, 
and found the same to be accurate. On the same day the 
county auditor attached his certificate to such schedule and 
the two facsimiles, to the effect that the same contained 
a correct copy of the abstract of the votes polled in Walla 
Walla county at the general election, and thereupon issued 
to respondent a notice of election, notifying him that he 
had received the highest number of votes cast for the office 
of county assessor. No official record was kept of the pro- 
ceedings of the canvassing board, and no statement of the 
count or canvass was drawn up or signed by the canvassing 
board, or any member thereof. The statement of contest 
was filed on December 1, 1904. 

The provisions of the statute bearing upon the question 
imder consideration are the following: Bal. Code, § 1407, 
provides that, on the 10th day after the election, or as soon 
as the returns are in from the several precincts, the county 
auditor shall notify two county officers to be present at his 
office on a day named, for the purpose of canvassing the 
votes; that the county auditor shall take the oath therein 
prescribed, "and then the said auditor, with the assistance 
of two county officers aforesaid, shall proceed to count the 
votes of said county or precincts, a statement of which shall 
be drawn up and signed by them." Section 1408 designates 
the chairman of the board of county commissioners and 
the prosecuting attorney as the two officers to be notified, 
and declares that said officers, together with the county 



254 CUSKER Y. BERRYMAN. 

Opinion I'er Rudkin, J. [39 Wash. 

auditor, shall constitute the county canvassing board of 
election returns. Section 1410 provides that the person 
having the highest number of votes given for each office 
to be filled by the voters of a single county, or of a precinct, 
shall be declared duly elected, and the county auditor shall 
immediately notify him of his election, and make out and 
deliver to him a certificate of election on application there- 
for. Section 1430 provides that, 

''When any such elector shall choose to contest the right 
of any person declared duly elected to such office, he shall, 
within ten days after such person shall have been declared 
•duly elected to such office, file with the clerk of the superior 
court of the county a written statement, setting forth," etc. 

The election statutes are inharmonious. This results 
principally from the fact that they have been amended from 
time to time by changing the names of officers, and by adding 
new officers, without making any corresponding change in 
other parts of the statutes. For example, section 6 of chapter 
7 of the act of January 22, 1866, provides that the county 
auditor, within ten days after the election, or as soon as 
the election returns are in, 

"Shall proceed to estimate the vote of the county or pre- 
cinct, a statement of which shall be dra\vn up and signed 
by him. The statement shall contain the names of the per- 
sons voted for; the office to fill which each person was voted 
for ; the number of votes given at each precinct to each of 
sucli persons, and the number of votes given to each in 
the county; and the same shall be filed, together with the 
returns from each precinct, in the office of the county 
auditor." 

Section 7 of chapter 7 of the same act is identical with 
Bal. Code, § 1410. Section 6 of chapter 8 of the same act is 
identical with Bal. Code, § 1430, except that under the 
former the statement of contest was filed with the county 
auditor instead of the clerk of the superior court. The 
ten days within M^hich a contest must be instituted com- 
mences to run when the contestee is duly declared elected 



I 



CUSKER V. BERRYMAN. 255 

July 1905] Opinion Per Rudkin, J. 

to the office, but the statute does not provide for a formal 
declaration of the result of the election, nor bv whom such 
declaration shall be made. Under the original act of 1866, 
we have no doubt that the result of the election was formally 
declared when the county auditor prepared and signed the 
written statement provided for in § 6 of chap. 7, supra, 
and filed the same, together with the election returns, in 
his ofiioe, thereby making the result of the canvass a matter 
of public record. We think the same is true under Bal. 
Code, § 1407. The latter section does not in terms provide 
that the statement shall be filed in the auditor's ofiice; but, 
inasmuch as that officer is the custodian of the election re- 
turns^ it should be so filed. The time allowed by law for 
the institution of a contest is very short at best, and a 
contestant is entitled to rely on the record for his guidance. 
He should not be required to look beyond the record, nor 
to the progress made by a deputy auditor in footing up 
the election returns. No formal statement of the canvass 
was drawn up or signed in this case, but the appellant had 
a right to presume that the canvassing board would comply 
with the statute, and this presumption would continue until 
the canvassing board or the county auditor took some action 
inconsistent therewith, indicating that the result of the 
election had been declared and their labors completed. There 
was nothing of record to show that the result of the election 
in question had been declared, or that the canvassing board 
did not intend to comply with the requirements of the statute, 
imtil the county auditor certified to the election returns and 
issued a notice of election to the respondent, on November 
21 ; and the time for instituting a contest did not commence 
to run until then. 

In our opinion, the contest was instituted within time; 
and the judgment is reversed, and the cause remanded for 
further proceedings not inconsistent with this opinion. 

Mount, C. J., Root, Cbow, Fullebton, TTadley, and 
DuNBAE, JJ., concur. 



256 DAVIS V. VIRGBS. 

Citations of Oounsel. [39 Waflh. 

<No. 5673. Decided July 21. 1906.) 

Wesley Davis et ah. Respondents, v. William Vibqes et oL, 

Appellants} 

Appeal — REMrmruB — Judgment Against Subeties — Power of 
LowEB Ck)UBT — Bonds. Upon the dismissal of an appeal in the su- 
preme court without the entry of any judgment against the appellant 
and his sureties, the lower court, after remittitur, has no power to 
enter Judgment against the sureties upon the statutory appeal and 
supersedeas bond given by the appellant, there being no statutory 
provision for such summary Judgment. 

Same — Summary Judgment by Agreement — Surplusage in Bond. 
A gratuitous clause in a statutory bond whereby the sureties agree 
to the entry of summary Judgment against them, in case the appellant 
fails to pay the judgment within thirty days after the filing of the 
remittitur, is without legal force, and confers no right to such a 
judgment, the sureties being entitled to their day in court. 

Appeal from a judgment of the superior court for Pierce 
county, Chapman, J., entered February 21, 1903, in favor 
of the plaintiffs and against sureties upon the defendants' 
appeal bond, after the dismissal by the supreme court of 
an appeal from a judgment of the same court. Reversed. 

Hudson & Holt, for appellants, to the point that a sum 
mary judgment cannot be entered unless authorized by 
statute, cited: O'Connor v. Lighthizer, 34 Wash. 152 75 
Pac. 643; Hanna t\ Savage, 8 Wash. 432, 36 Pac. 269; 
Noble V. Whittcn, 34 Wash. 507, 76 Pac. 95 ; Blair v. 
Sanborn, 82 Tex. 686, 18 S. W. 159; Offeiman etc. R. Co. 
V. Waycross Air-Line Co,, 112 Ga. 610, 37 S. E. 871 ; Miller 
V. Hogeboom, 56 Xeb. 434, 76 X. W. 888. A statutory 
bond does not constitute a voluntary stipulation. Powers 
V. Chabot, 93 Cal. 266, 28 Pac. 1070. Surplus provisions 
in a statutory bond cannot be enforced except by common 
law action. Brov:n i\ Levins, 6 Porter (Ala.) 414; Staie 
ex rel. Stow r. City Council of Montgomery, 74 Ala. 226; 

iReported in 81 Pac. 688. 



DAVIS V. VIRGBS. 257 

July 1905] Opinion Per Mount, C. J. 

Jones V. Parsons, 10 Tenn. 320 ; Hymens v. Brown's Ex'rix, 
15 Tex. 302; Preshury v. Fisher, 10 Mo. 60; 8 Cent. Dig. 
p. 49 ; Powers v. Chdbot, supra; McC allien v. Hibemia 8av. 
& Loan Soc, 98 Cal. 442, 33 Pac. 329; Central Lumber 
& Mill Co. V. Center, 107 Cal. 193, 40 Pac. 334. Summary 
judgment must be authorized by, and strictly conform to, 
the state statute. Halsey v. Murray, 112 Ala. 185, 20 
South. 575 ; Offermxin etc. R. Co. v. Waycross Air-Line Co.j 
supra; Reynolds v. Cox, 108 Ala. 276, 19 South. 395 ; Selby 
V. McQuillian, 45 Neb. 512, 63 X. W. 855 ; Powell v. Camp, 
60 Mo. 569; Gunn v. Sinclair, 52 Mo. 327. 

John C. Stallcup, J, W. A. Nichols, and Albert E. Joab, 
for respondents. 

Mount, C. J. — On February 21, 1903, respondents re- 
covered a judgment for $750 and costs, against the Tacoma 
Railway & Power Company, George M. Shreeder and Mace 
C. Green, and thereafter the judgment debtors appealed to 
this court. Shreeder and Green did not join with the Ta- 
coma Railway & Power Company in the appeal, but. took a 
separate, independent appeal. At the time the appeal was 
taken by Shreeder and Green, an appeal and .supersedeas 
bond was given by them, with A. Huth and William Virges 
as sureties. The bond was in substance as required by stat- 
ute, except after reciting that, if the judgment appealed 
from should be affirmed on the appeal or dismissed, ap- 
pellants would pay the amount directed by the judgment 
on the appeal, it contained the following provision: 

"If the appellants do not make such payment within 
thirty days after the filing of the remittitur from the 
supreme court, judgment may be entered on motion of the 
respondents in their favor against the undersigned sureties^ 
for the said sum of $750, together with $45.95 costs, to- 
gether with $ . . . . interest that may be due thereon, and 
the damages and costs which may be awarded against the 
appellants upon the appeal." 

17— 8» WASH. 



258 DAVIS V. VIRGBS. 

Opinion Per Mount, C. J. [39 Wash. 

When the case came on to be heard in this court, the 
appeal of Shreeder and Green was dismissed, for the reason 
that their notice of appeal was not served on the railway 
company. The judgment was reversed as to the railway 
company, and remanded for a new trial. Davis v. Tacoma 
B. S Power Co., 35 Wash. 203, 77 Pac. 209. Xo judgment 
was entered by this court in favor of the respondents. There- 
after, when the remittitur from this, court went to the lower 
court, respondents moved the lower court for a judgment 
against the sureties on the bond, for the amount of the judg- 
ment and costs against Shreeder and Green. No notice of 
this motion was given, except an oral notice. The sureties 
appeared by their counsel, and objected to the jurisdiction 
of the lower court to enter judgment in such summary 
manner against the sureties on the bond. This objection 
was denied, and judgment was entered as requested. The 
sureties, Virges and Huth, now appeal from that judgment. 

There is no provision of law authorizing the lower court 
to enter a judgment in this summary way upon a statutory 
bond given on appeal to this court The statute, Bal. Code, 
§ 6523, expressly provides that this court, upon the aflSrm- 
ance of a judgment, may render judgment against both the 
appellant and his sureties in the appeal bond, for the amount 
recoverable according to the condition of the bond, in case such 
amount can be ascertained by the court without an issue 
and trial. But there is no such provision relating to the 
lower court. In Orunewald v. West Coast Grocery Co,, 
11 Wash. 478, 39 Pac 964, it was held that this court 
could not render a judgment against the sureties on an 
appeal bond where we had not obtained jurisdiction of the 
causa See, also, Uenry v. Great Northern R. Co., 16 Wash. 
417, 47 Pac. 895. If this court had no jurisdiction, to enter 
a judgment against the sureties upon this appeal bond, it 
needs no argument to show that the lower court acquired 
no jurisdiction to do so, where there is no express statutory 
authority therefor. In speaking to this point under a statute 



DAVIS V. VIRGES. 259 

July 1905] Opinion Per Mount, C. J. 

which provides for a cost bond in actions brought by non- 
residents, Bal. Code, § 5186, in O'Connor v. Lighthizer, 34 
Wash. 152, 75 Paa 643, we said: 

* "That statute makes no provision for the entry of judg- 
ment as of course against the sureties, in the same action 
in which the bond is filed. Without such express statutory 
authority as entering into, and becoming a part of, the con- 
tract in the bond, whereby the sureties consent to such judg- 
ment, we believe judgment cannot be entered against them; 
and they are not, therefore, parties appearing in the action 
upon whom notice of appeal is required, within the meaning 
of § 6504, Bal. Code. Not being persons against whom 
judgment may be entered as of course by statutory authority, 
they are entitled to their day in court." 

The same reasoning which we applied to that case must be 
applied in this, because there is no substantial difference in 
the two cases. 

Counsel for respondents argue that, because the bond pro- 
vides that judgment may be enfered against the sureties upon 
motion, for the amount due from the principal, therefore 
the lower court had jurisdiction to enter the judgment as 
of course. It is sufficient answer to this to say that this 
bond is a statutory bond. The provision under considera- 
tion was not required by statute. Its insertion, therefore, 
was a mere gratuity which added no legal right nor liability. 
It was surplusage. If this provision may be held to confer 
a right to enter a judgment, as of course, without an action 
upon the contract^ the same rule would permit a judgment 
upon any contract when it is stated that judgment may be 
taken upon default of the terms of the contract. This can 
never be a just and equitable rule, and is not permitted. The 
debtor must be given his statutory notice by summons, so 
that he may have his day in court. 

The judgment appealed from is reversed. 

Root, Crow, Rudkix, Fulleeton, IIadley, and Dun- 
BAK, JJ.^ concur. 



260 STATE V. DB PASQUALE. 

Opinion Per Mount, C. J. [39 Wash. 

(No. 5592. Decided July 21, 1906.) 

Tub State of Washington, Respondent, v. Joseph 

De Pasquale, Appellant} 

Criminal Law — Trial — Unlawful Comment on the Facts — 
Cross-Examination by Trial Judge. It is unlawful comment on the 
facts, within the meaning of the constitution, for the trial judge in 
a criminal case to cross-examine the accused, asking leading quesr 
tions calculated to discredit the witness, and clearly conveying the 
idea to the jury that, in the opinion of the court, the accused is 
guilty and his defense not hona fide. 

Appeal from a judgment for the superior court for Walla 
Walla county, Brents, J., entered JsTovember 1, 1904, upon 
a trial and conviction of the crime of manslaughter. Re- 
versed. 

Oeorge T. Thompson and Oscar Cain, for appellant. 
Lester S. Wilson, for respondent. 

Mount, C. J. — Appellant was charged with the crime of 
murder in the first degree, for killing one Dominic Di Valerio. 
He was tried and found guilty of the crime of manslaughter, 
and appeals from a judgment entered thereon. 

The evidence shows that, at the time of the tragedy, the 
appellant was employed with a number of other Italians, in 
paving certain streets in the city of Walla Walla; that the 
appellant and deceased, Di Valerio, with several other of 
their countrymen, resided in a small house in said city; 
that on the 23d day of September, 1904, the appellant and 
the deceased, while they were in a saloon together, had some 
words concerning their employment They called each other 
vile names, and were prevented from coming to blows by the 
intervention of friends. Soon after this quarrel, both pro- 
ceeded to their abode. Appellant reached there ahead of 
Di Valerio. When Di Valerio came into the house, the 
quarrel was renewed. After they had quarreled and threat- 

1 Reported in 81 Pac. 689. 



STATE V. DB PASQUALE. 261 

July 1905] Opinion Per Mount, C. J. 

ened each other for some time, Di Valerio went out of the 
house by the front door, and appellant went out by the 
kitchen or back door. Each was armed with a pistol, and 
each advanced toward the other from around the outside 
of the house. AVhen they came within sight of each other, 
appellant fired at Di Valerio, the ball taking effect and re- 
sulting in his death. Appellant thereupon fled, but was 
apprehended a few days later. Appellant attempted to 
justify the killing upon the ground of self-defense. 

Three errors are assigned upon this appeal: (1) That the 
court erred in commenting upon the evidence; (2) that 
the court erred in permitting a witness to testify that the 
appellant had attempted to secure the discharge of the de- 
ceased from his employment on the day before the killing; 
and (3) that the court erred in denying appellant's motion 
for a new trial upon the ground of misconduct of the jury. 
We shall not discuss the last two errors assigned because 
they are without merit, and besides are wholly unimportant. 

But we are satisfied, after an examination of the record, 
that the conduct of the trial court amounted to a comment 
upon the facts, and that, for this reason, the first assign- 
ment of error is a meritorious one. It appears that, at the 
close of the evidence, while the appellant was upon the wit- 
ness stand giving evidence in his own behalf, and after he 
had been examined by his own counsel and cross-examined 
by the prosecuting attorney, the judge left his seat upon 
the bench and stood near the appellant, who had been il- 
lustrating his evidence by a plat upon the floor in front 
of the jury, and subjected the appellant to the following 
examination : 

"The Court : Did you see him before he saw you ? An- 
swer : Yes, sir. The Court : Did you holler at him before 
he saw you? A. Yes, sir. The Court: Could he see you 
up there? A. He could see about half of me. The Court: 
WTien he went in the front, did you expect him to come 
around there to fight you with a pistol? A. Yes, I sup- 



262 STATE V. DB PASQUALB. 

Opinion Per Mount, C. J. [39 Wash. 

posed he would come in the kitchen and shoot. The Court : 
Did you go out with the expectation of fighting him with 
a pistol? A. He had a pistol. lie said, ^I have to hlow 
you out and eat your heart' The Court: Did you go out 
intending to shoot him ? A. I was standing in the door when 
I saw the revolver like that, just like that, I saw him like 
that. The CoTirt : lie didn't see you ? A- No, I said, 'Stop, 
don't you come here any more, keep away from here,' I said 
that three times in combination. I was afraid he would 
shoot me, I shot like that and turned this way. I turned 
back this way. He turned this way. Then I go this way. I 
run this way and found a fence. The Court: Before you 
went out then, you thought he was going around this way 
to shoot you? While you were in the house you thought 
he was going around to shoot? A. When I started out? 
The Court : Did you think he was going out with his pistol ? 
A. I was looking to see what he done, when I saw him like 
that. I said, 'Dominic, stop^ get out from here.' He was 
coming as fast as he can and I jumped oflF like that. I went 
this way and he went that way. The Court : You thought, 
didn't you, that he was going around there to shoot ? A. Yes, 
he told me. The Court: You went out there with a pistol 
expecting to meet him and have a shooting scrape with him ? 
A. I was shooting for my life. The Court: Did you say 
to him anything about going out to shoot? A. No sir, I 
did not. I was telling him to take off his revolver and coat 
and everything and go out and fight a fist fight. . . . 
The Court: If you had stayed inside, wouldn't you have 
been safe? A. This door been closed. The Court: When 
he went outside, if you had stayed inside, wouldn't you have 
been safe ? A. If I stay in this room he come in and shoot 
me in the door. Then I would have been dead where he is 
now. If I stop in this room, he would kill me. I go out 
doors and then I see him coming this way with a revolver. 
I said, 'Dominic, stop^ keep away from here.' Then I shoot 
and I run this way and he that way. The Court: At the 
time you stepped out and shot was he aiming his revolver 
at you ? A. He didn't know where I was. The Court : He 
didn't know where you were when ? A. When I hollered he 
was looking, he didn't know whether I was close to the fence 
or at the house," 



STATE V. DE PASQUALE. 263 

July 1905] Opinion Per Mount, C. J. 

There can be no doubt that the court, by such questions 
as the following : "You went out there with a pistol expect- 
ing to meet him and have a shooting scrape with him ?" "Did 
you say anything to him about going to shoot ?" "If you had 
stayed inside, wouldn't you have been safe ?" "When he went 
outside, if you had stayed inside, wouldn't you have been 
safe?" — clearly conveyed the idea to the jury that the ap- 
pellant was at least guilty of manslaughter, and that the plea 
of self-defense was not bona fide, in the opinion of the court. 
These questions are in the nature of a cross-examination 
by the prosecuting attorney, and calculated to discredit the 
witness. They would not be improper if asked by that officer, 
but when asked by the trial judge, they show his opinion 
of the case, rather than a desire on the part of an impartial 
judge to permit the witness to make his evidence more clearly 
understood. The examination of the appellant in this case 
was, we think, more clearly within the constitutional inhibi- 
tion than the examination in State v. Crotts, 22 Wash. 245, 
60 Pac. 403, where we said: 

"There are different ways by which a judge may com- 
ment upon the testimony, within the meaning of the con- 
Ftitution referred to above. The object of the constitu- 
tional provision, doubtless^ is to prevent the jury from 
being influenced by knowledge conveyed to it by the court 
of what the court's opinion is on the testimony submitted. 
The constitution has made the jury the sole judge of the 
weight of the testimony and of the credibility of the wit- 
nesses, and it is a fact well and universally known by courts 
and practitioners that the ordinary juror is always anxious 
to obtain the opinion of the court on matters which are sub- 
mitted to his discretion, and that such opinion, if known 
to the juror, has a great influence upon the final determina- 
tion of the issues. This information can be conveyed as 
readily to the jury by leading questions asked of them, and 
the manner of the judge in asking such questions, as by a 
direct comment upon the testimony in the charge to the 
jury." 



264 DtJMONTIBR V. STETSON & POST MILL CO. 

Syllabus. [39 Wash. 

The Crotis case was reversed solely upon the ground that 
the examination of a witness by the court amounted to a 
comment upon the facts. While the evidence in this case 
may show that the appellant is guilty of the crime of man- 
slaughter, yet the appellant has a constitutional right to 
have the question of his guilt determined by a jury imin- 
fluenced by the opinion of the trial judge. 

The judgment must therefore be reversed, and the cause 
remanded for a new trial. 

DuNBAB, Crow, Root, IIadley, Fuixeeton, and Eud- 
KiN, JJ., concur. 



(No. 5530. Decided July 21, 1906.) 



Frank Dumontier et al.. Respondents, v. Stetson & Post 

Mill Company, Appellant} 

New Trial — Newly Discovebed Evidence — Absent Witness — 
Affidavit of — Discretion, The affidavit of the witness, or good cause 
for its nonproductlon, being required by Bal. Ck)de, § 5076« it is not 
an abuse of discretion to refuse a new trial on the ground of 
newly discovered evidence, where the witness lived in Spokane and 
his affidavit was not produced, after twenty days continuance of the 
motion, and where the appellant knew of his whereabouts during 
all said time and merely affirms that the witness was (now) tempora- 
rily absent from his place of business and that he had been unable 
to procure his affidavit after making every effort to do so. 

Same — Absence of Witness — ^Request for Continuance. It Is 
not an abuse of discretion to refuse a new trial for newly dis- 
covered evidence* where the existence of a material witness, who 
could not be found, was at all times known, and his residence was 
discovered before the close of the trial, but not in time to produce 
him, and the appellant did not seek a continuance on account of 
the absence of the witness or ask any postponement of the trial 
for the purpose of producing the evidence. 

Master and Sebvant — Liability to Third Persons — ^Negligence 
of Servant — Unloading Lumber — Evidence of Negligence— Question 
FOR Jury. In an action for personal injuries sustained through the 

1 Reported in 81 Pac. 693. 



DUMONTIER v. STETSON ft POST MILL CO. 265 

July 1905] Opinion Per Haduct, J. 

fall down a hill of a load of lumber, being delivered by the de- 
fendant's teamster to the plaintiff, at the edge of a steep bluff, 
there is sufficient evidence to sustain a verdict for the plaintiff, 
where it appears that the wagon was so constructed that the entire 
load could be unloaded at one time, that the teamster had com- 
menced to unload by throwing pieces down the hill, that plaintiff, 
after giving directions as to the manner of unloading, went down 
the hill to straighten boards thrown down, and while there with 
notice to the teamster, the entire load was unloaded at once, and 
slipped down the hill, striking the plaintiff and causing the injury, 
and where the Jury inspected the premises, and the hill was not so 
steep but that persons could walk up or down, and were in the habit 
of doing so; and the questions of negligence and contributory negli- 
gence are for the Jury. 

Same — Liability of Master to Thibd Persons. Defendant, who 
sold a load of lumber to the plaintiff, is liable for personal injuries 
sustained by the plaintiff through the negligent acts of the de- 
fendant's servant in unloading the lumber. 

Appeal from a judgment of the superior court for King 
county, GriflBn, J., entered January 9, 1905, upon the verdict 
of a jury rendered in favor of the plaintiffs, for personal 
injuries sustained through the fall of a load of lumber, de- 
livered by defendant to plaintiffs. Affirmed. 

Kerr & McCord, for appellant. 

Vince H, Faben and Martin J. Lund, for respondents. 

Hadley, J. — This is an action for damages for personal 
injuries received by the plaintiff Mary Dumontier. The 
plaintiffs are husband and wife. Their amended complaint 
aversj that on August 13, 1903, said Mary Dumontier pur- 
chased from the defendant, at its mill in the city of Seattle, 
one wagon load of lumber, to be delivered and unloaded by 
the defendant at the plaintiffs' home, on Beacon hill, near 
Fourteenth avenue south and "Walker street, in said city; 
that on the following day said load of lumber was brought 
to plaintiffs' home on defendant's wagon, hauled by defend- 
ant's team, and in charge of one of defendant's teamsters, 
whose name is to plaintiffs unknown; that plaintiffs' home 
is situated upon a sidehill, on rising and steep ground; 



266 DUMONTIER v. STETSON & POST MILL CO. 

Opinion Per Haoley, J. [39 Wash. 

that, after plaintiffs had paid for the lumber, defendant's 
teamster commenced to unload it in such manner that Mary 
Dumontier believed it would slide down the hill and be 
broken, and she requested him not to unload it in that 
manner; that, before she made said request, the teamster 
had thrown two boards so that they had slidden down the 
hill ; that, after the plaintiff had made said request, she went 
down the hill to pick up the boards so thrown; that the 
wagon was so constructed that the entire load could be un- 
loaded at once, and while she was down the hill below the 
wagon, after she had picked up one of the boards, while 
she was in the act of picking up the second one, and while 
she was in full view of the teamster, the latter, knowing 
that she was there, carelessly and negligently unloaded the 
whole load of lumber at once; that the same slid down the 
hillside, and in its descent caught said plaintiff, knocked 
her down, and buried her under it, causing her great bodily 
injury. The nature of the injuries is set forth and damages 
are demanded. A general demurrer to the complaint was 
overruled, and the defendant answered. It is not denied 
that the lumber was purchased as alleged and hauled by 
defendant's teamster, but other material averments were de- 
nied, and contributory negligence w^as affirmatively pleaded. 
The cause was tried before a jury, and a verdict was re- 
turned for the plaintiffs in the sum of $3,500. The de- 
fendant moved for a new trial, which was denied, and judg- 
ment was rendered for the amount of the verdict, from which 
defendant has appealed. 

Errors are assigned upon the refusal of the court to give 
two requested instructions. We think, in effect, the same 
subject-matter was covered by instructions given, and we 
believe it is unnecessary to discuss these assignments. No 
prejudice resulted to appellant from mere failure to give 
the instructions in the requested form. 

Appellant's chief contention is that the court erred in 
denying its motion for a new trial. The first point ui^ed 



DUMONTIER v. STETSON ft POST MILL CO. 267 

July 1905] Opinion Per Hadley, J. 

under this assignment is that the new trial should have heen 
granted because of newly discovered evidence. The teamster 
who was in charge of the delivery wagon at the time of the 
accident was not present at the trial. It appears that he 
and the injured resjwndent were the only persons present 
at the time of the accident. In support of the motion for 
a new trial, the president of the appellant corporation made 
affidavit that the teamster, if present^ would testify to facts 
materially different from the testimony of the injured re- 
spondent ; that the -teamster left the employ of appellant 
within a few days after the accident occurred ; that the suit 
was not commenced until nearly a year after the accident, 
and the appellant, knowing nothing .of the family or former 
residence of the teamster, and not anticipating that any 
action would be brought, made no effort at the time to 
keep informed as to his whereabouts; that, after the com- 
mencement of the action, and until the time of the trial, 
the appellant sought to find him, but could get no trace 
of him; that at the time of the trial appellant was unable 
to state that there was any probability of procuring the testi- 
mony of this witness, for the reason that it was impossible 
at that time to find any trace of him for the purpose of 
procuring his testimony; that since the trial appellant has 
learned that the witness resides in Spokane, and that he is 
now temporarily absent from his place of business, but that 
appellant can procure his testimony, if a new trial shall bo 
granted. The affidavit further states that, during the trial 
of the case and after the testimony was all taken, a fprmer 
friend of the teamster informed appellant that the teamster 
resides in Spokane; that appellant has been making every 
effort to procure his affidavit, and will be able to procure 
his testimony at a subsequent trial, provided the same shall 
be reassigned for a period not later than thirty days hence. 
Upon filing the motion for new trial, the court granted 
twenty days for the pur]X)se of procuring affidavits. The 
affidavit of this witness residing ia Spokane was not pro- 



268 DUMONTIER v. STETSON ft POST MILL CO. 

Opinion i^er Hadlet, J. [39 Wash. 

cured. Bal. Code, § 5076, requires that the aflSdavit of the 
witness, showing what his testimony will be, shall be pro- 
duced, or good reasons shown for its nonproduction. The 
aflSdavit of the president of the appellant company above 
mentioned was verified just twenty days after the filing of 
the motion for new trial. It states that the witness was 
then temporarily absent from Spokane, but does not state 
that he was so absent during the entire time of the pre- 
ceding twenty days. Inasmuch as it appeared that appellant 
was advised of the witness' loci^tion before the close of the 
trial, the trial court may have considered that, under the 
circumstances, good cause was not shown for the nonpro- 
duction of the witness' aflSdavit. Such questions arising 
upon motion for new trial are addressed to the sound dis- 
cretion of the trial court, and in the absence of abuse of 
such discretion an appellate court will not interfere. Wait 
V. Robertson Mtg, Co., 37 Wash. 282, 79 Pac. 926. 

^Moreover the testimony of this witness cannot well be 
called newly discovered evidence. The existence of the wit- 
ness, and his presence at the time of the accident, were 
known to appellant both before and during the trial. The 
essence of appellant's contention seems to be based rather 
upon the absence of a witness whose testimony was known 
than upon the ground of newly discovered evidence. State 
V. Lamoille, 37 La. Ann. 43. No delay or request for 
continuance was asked at the time of the trial because of 
the absence of this witness. True, the president's aflSdavit 
states that such request was not made for the reason that 
appellant could not state the probability of procuring tlie 
testimony at another time, because it had been unable to 
find the location of the witness. While this was true at 
the beginning of the trial, yet before its close appellant had 
discovered the residing place of the witness. 

"The testimony upon which a new trial is asked must 
have been discovered since the trial. If the testimony was 
discovered before the close of the trial, and even after argu- 



DUMONTIER v. STETSON ft POST MILL CO. 269 

July 1905] Opinion Per Hadley, J. 

ment, but before submission to the jury, it will not con- 
stitute newly discovered evidence, since the applicant could 
have informed the court and offered such testimony at that 
time, or, if the witnesses were not at hand, could have 
obtained a continuance/' 14 Ency. Plead. & Prac, p. 796. 
bee, also, Bailey, Wood £ Co. v. Landingham, 52 Iowa 415. 

In Ilendrickson v. Tracy, 53 Minn. 404, 55 X. W. 622, 
it was held that an appplication for a new trial will not be 
granted when the testimony is known at the time of the 
trial, and no postponement is sought to enable the party 
desiring the testimony to ascertain the whereabouts of the 
witness and procure his testimony. 

"If he desired the hearing postponed, in order to procure 
absent witnesses, as is claimed in his brief, he should have 
made a showing to the court, by affidavit or other testi- 
mony, stating the namee of the absent witnesses, what they« 
would testify to if present, and the efforts used to procure 
their attendance. A party cannot wait until after trial and 
verdict, and then, for the first time, complain that he went 
to trial without his witnesses being present, when he was 
aware of their absence before the trial commenced." Van 
Etten V. Butt, 32 Xeb. 285, 49 N. W. 365. 

In Sharp v. Oreene, 22 Wash. 677, 62 Pac. 147, this 
court said: 

"A new trial for reasons not authorized by law is an 
injury and loss to the party who has prevailed in the first 
trial; also, the public good requires that there be an end 
to litigation. It is a maxim of the law tliat a man shall not 
be twice vexed for one and the same cause." 

We do not find that the court abused its discretion in de- 
nying the motion for new trial on the ground above dis- 
cussed. 

Another reason assigned why the motion for new trial 
should have been granted is that the evidence was insufficient 
to justify the verdict. This contention also involves con- 
tributory negligence. It is argued that the hill was almost 
perpendicular, and that it was a physical impossibility for 
the respondent to have walked down and picked up the 



270 DUMONTIER v. STETSON ft POST MILL CO. 

Opinion Per Hadlet, J. [39 Wash. 

pieces of lumber, as she testified. It is also contended that 
her evidence showed that, at the time she stepped over the 
bluff, the teamster had started to the heads of his horses 
for the purpose of backing the rear end of his wagon to 
the edge of the bluff, and that he was therefore not in posi- 
tion where he could see her, from the very nature of the 
contour of the ground; that she was better able to see the 
wagon than the teamster was able to see her, and that, if 
she had used her ordinary senses, she could have seen the 
lumber as it was being unloaded, and avoided the danger. 
The jury inspected the premises, and saw the physical 
conditions. There was testimony that the hill was steep, 
but tliat persons could walk down or up, and that children 
were in the habit of running up and down the bluff. The 
respondent testified as follows: 

"When he brung the team some of the lumber fell out, 
some of the lumber that was on top, and he throwed it 
down the hill; instead of throwing it do^vn strai^it he 
throwed it across. And I told him I did not want the lum- 
ber to be broken up like that, to throw it down straight and 
he said it would go down anyway. Well, when he asked me 
to give him the money, and I gave him his money — I gave 
him his money, and told him, 'I will go down the hill and^ 
1 will throw that lumber down.' And he went towards the 
team, and he said 'AH right' ; and he went towards the 
team; and the team was turned this way (illustrating), and 
after I went down the hill he changed the team. . . . Ko 
sir, he just — ^he said 'All right' when I said I would go 
do^vn and straighten the boards, I didn't want the lumber 
to break up, I wanted him to throw it down sttftight, and 
he said 'All right,' and he went towards the wagon and I 
went right straight down to where the lumber was ; and I just 
put one down and throwed one on one side, and I picked 
up another one to throw it and the lumber came down on 
me, and I didn't know any more." 

We think it does not appear that it was physically impos- 
sible for the accident to happen as testified, and, under the 
evidence, the questions of negligence of the teamster and of 



THAM V. STEEB SHIPPING CO. 271 

July 1905] Syllabus. 

respondent's contributory negligence were properly for the 
jury to determine. The jury must have found against con- 
tributory negligence, and that the negligence of the teamster 
was established. The liability of appellant follows, and a 
verdict against it was authorized, for the reason that em- 
ployers and masters are answerable for damages resulting 
from the acts of their servants committed while in the exer- 
cise of the functions of their employment and incidental 
thereto. For authorities applicable to a case of this kind, 
gee the following : Holmes v. Tennessee Coal, Iron & B. Co., 
49 La. Ann. 1465, 22 South. 403 ; Keep v. Walsh, 44 IST. Y. 
Supp. 944; Pierce v. Conners, 20 Colo. 178, 37 Pac. 721, 
46 Am. St. 279; Ridge v. Railroad Transfer Co., 56 Mo. 
App. 133 ; Lovingston v. Bauchens, 34 111. App. 544. 

It is urged that a new trial should have been granted 
because the verdict was excessive. After ah examination 
of the testimony as to the nature of the injuries, having 
in view all the testimony upon the subject and the fact that 
the trial court, who saw the respondent and heard all the 
witnesses, has, by the denial of a new trial, found that the 
amount is not excessive, we believe we are not justified in 
finding otherwise. We therefore think it was not error to 
deny the motion for new trial, and the judgment is affirmed. 

MOIJNT, C. J., FULLERTON, CrOW, RuDKIN, and DUNBAB, 

JJ., concur. 



(No. 5463. Decided July 21, 1905.) 

Charles Tiiam, Respondent, v. The J. T. Steeb Shipping jTW m\ 

Company^ Appellant.^ I«»_^ 

Master and Servant — ^Negliqencb— Open and Obvious Dangers — 
Assumption of Risks. Where the dangers Incident to the employ* 
ment are alike open and obvious to the master and servant, the 
I>arties are upon an equality, and the master is not liable for an 
injury to the servant resulting therefrom. 

iReported in 81 Pac. 711. 



272 THAM V. STEEB SHIPPING CO. 

Opinion Per Root, J. [39 Wash. 

Appeal — Review — Ebbob Favobable to Appella:jt — Tbial — In- 
STBUCTioNs. The giving of an erroneous instruction, favorahle to 
the appellant, is not prejudicial error although it conflicts with other 
correct instructions. 

Appeal — ^Review — ^New Tbial — ^Ebbobs of Law. The granting of 
a new trial solely for supposed error in an instruction, will be 
reversed on appeal for error of law where the instruction was 
correct, no Judicial discretion being involved. 

Appeal from an order of the superior court for Pierce 
county, Snell, J., entered August 29, 1904, granting a new 
trial, for error of law, upon motion of the plaintiff, after 
a trial and verdict in favor of the defendant, in an action 
for personal injuries. Reversed. 

James M. Ashton and W. H. Hayden, for appellant. 
TF. H. Harris, for respondent. 

EooT, J. — ^Respondent, while working for appellant upon 
a scow by the side of the ship "Robert Adamson," was 
knocked from said scow by a sling-load of lumber, swung 
from the rail of said ship. In falling, he struck upon the 
railing of a naphtha launch, lying alongside the scow, and 
suffered a broken leg. He brought suit for damages. At 
the trial, a verdict was returned in favor of the defendant. 

A motion for a new trial was duly made> and was granted 
by the trial court, solely upon the ground that two of its 
instructions were inconsistent with, and contradictory to, 
each other, and that one of them, number 18, hereinafter 
referred to, was not the law. Appeal is taken from this 
order. Said instruction number 18 "was in the following 
language : 

"If you find from the evidence that the danger was alike 
open and obvious to the plaintiff and to the defendant, both 
the plaintiff and the defendant are upon an equality, and 
the master is not liable for an injury resulting from the 
dangers incident to the employment." 



THAM V. STEEB SHIPPING CO. 273 

July 1905] Opinion Per Root, J. 

The other instruction is number 27, and is as follows: 

"Under the law of this state the master and servant do 
not stand upon an equal footing, even when they have equal 
knowledge of the danger. The position of the servant is 
one of subordination and obedience to the master. The ser- 
vant has the right to rely upon the superior knowledge a;id 
ekill of the master. The servant is not entirelv free to act 
upon his own suspicion of danger. If, therefore, the master 
orders the servant into a place of danger and the servant 
is injured he, the servant, is not guilty of contributory negli- 
gence, unless the danger was so glaring that a reasonably 
prudent person would not have entered into it." 

We are unable to agree with the learned trial judge that 
instruction number 18 is not the law. This instruction is 
taken, in substance, from the opinion of this court in Ander- 
hon V. Inland Tel etc. Co., 19 Wash. 575, 53 Pac. 657, 41 
L. R. A. 410. The law as set forth in the instruction is 
recognized in that case, and in the following cases from this 
court: Hoffman v. American Foundry Co., 18 Wash. 287, 
51 Pac. 385 ; Jennings v. Tacoma R. & Motor Co., 7 Wash. 
275, 34 Pac. 937 ; Brown v. Tabor Mill Co., 22 Wash. 317, 
CO Pac. 1126. 

We do not think that this instruction is necessarily in 
conflict with instruction number 27. The idea sought to 
be conveyed by the latter is correct to the effect that the 
master and servant do not always stand upon an equality. 
The language in 27 is not apt, and some of the statements, 
taken alone, are not correct as propositions of law; but the 
substance, taken as a whole, would be proper in an appro- 
priate case — as, for instance, where there is little appearance 
of danger, but where the master, by superior knowledge, 
is aware of dangerous conditions not recognized by th^ ser- 
vant Respondent excepted to the giving of instruction 
number 18. He did not except to the giving of instruc- 
tion number 27, and had no occasion to do so, as it was 
favorable to him. Number 18 being a correct statement 

IS— 89 WASH. 



274 THAM V. STEEB SHIPPING CO. 

Opinion Per Root, J. [39 Wash. 

of the law, it follows tliat respondent had no just complaint 
because of its being given ; and he could not be prejudiced, 
even if 27 did conflict, for the reason that whatever effect 
27 would have, as against IS, would be in his favor. If 
the trial court's views of 18 were correct, the motion for 
a new trial would have been properly granted; but as, in 
our opinion, the statement of law in 18 is correct, the action 
of said court in granting said motion was erroneous. 

Ordinarily this court is very reluctant to set aside the 
action of the trial court in granting a new trial. In this 
case, it was suggested in respondent's brief that the trial 
court believed the evidence insufficient to sustain the verdict, 
and would have granted the new trial upon that ground, had 
it believed it had the power to thus review the action of the 
jury. Had the learned judge granted the motion upon this 
ground, or upon any ground involving soimd judicial discre- 
tion, his action would not likely have been disturbed. But the 
record fails to show such facts. On the contrary, it shows that 
the trial judge stated expressly that the evidence and facts 
were such that reasonable men might properly reach different 
conclusions thereupon, and he based his decision solely upon 
the conflict and inconsistency which he believed to exist be- 
tween said instructions 18 and 27. Hence, a clear question 
of law is presented, upon which we are unable to reach the 
same conclusion as that arrived at by said court. 

The judgment of the honorable superior court will there- 
fore be reversed, with instructions to enter judgment upon 
the verdict. 

ilouxT, C. J., Ceow, Hadley, Fullerton, and Rudkin, 
JJ., concur. 



PETERSON V. BAKER. 275 

July 1905] Opinion Per Rudkin, J. 



(No. 564L Decided July 21, 1906.) 

Louis Peterson et ah. Appellants, v. Charles Baker et ah, 
as County Commissioners etc.. Respondents} 

Highways — ^Public Land — School Section — Grant by Conobess — 
Resebyation fob Pxjblic Use — Constbuction. The right of way over 
public lands except those reserved for public use, granted by U. S. 
Rev. Stats., § 2477, for the construction of public highways, applies 
to school sections 16 and 36; since U. S. Rev. Stats., § 1947, re- 
serving such sections for the use of the common schools was but 
a declaration of governmental policy and did not reserve them for 
public use so as to except them from the operation of the grant; 
hence the maintenance of a public road over a school section for 
more than seven years establishes a valid subsisting public highway 
under Bal. Code, § 8846. 

Appeal from a judgment of the superior court for King 
county, Richardson, J., entered September 21, 1904, in favor 
of the defendants, after a trial before the court without a 
jury, dismissing on the merits an action to enjoin the main- 
tenance of a public highway. AflSrmed. 

Fred H, Peterson and H. C, Force, for appellants. 

Kenneth Mackintosh and Ernest B. Herald, for re- 
spondents 

EuDKiN, J. — On the 4th day of March, 1903, the plain- 
tiffs purchased from the state of Washington all of tract 3, 
of section 16, township 24, north, range 4, east of the 
Willamette Meridian, in King county, and are still the own- 
ers thereof. As such owners, they brought this action to 
restrain the defendants, as county commissioners of King 
county, from opening up or maintaining a public highway 
acrose the land so purchased. It was conceded that the road 
in question has been maintained across said tract since prior 
to the year 1876, and that such road has been kept up at 
public expense, and used continuously, ever since its estab- 

1 Reported in 81 Pac. 681. 



276 PETERSON V. BAKER. 

Opinion Per Rudkin, J. [39 Wash. 

lishment. The court below dismissed the action, and from 
the judgment of dismissal, this appeal is prosecuted. 

The respondents claim that there is a valid subsisting public 
highway across this land ; first, by virtue of U. S. Rev. Stats., 
§ 2477, which provides that, "the right of way for the con- 
struction of highways over public lands, not reserved for 
public usee, is hereby granted;" and, second, by virtue of 
Bal. Code, § 3846, which provides that, 

"All public roads and highways in this state that have 
been used as sudi for a period of not less than seven years, 
and are now so used, where the same have been worked, and 
kept up at the expense of the public, are hereby declared to 
be lawful roads and highways within the meaning and in- 
tent of the laws now existing governing public roads and 
highways in this state." 

The appellants, on the other hand, contend that no right 
of way was granted by the act of Congress above referred 
to, for the reason that the land in controversy was school 
land and was therefore, "reserved for public uses ;" and that 
the state statute does not apply because the county authori- 
ties failed to comply with § 46 of the act of March 26, 1895 
(Laws 1895, p. 547), or with § 35 of the act of March 16, 
1897 (Laws 1897, p. 246), relating to public highways over 
state lands. 

U. S. Rev. Stats, § 1947, provides as follows: "Sections 
numbered sixteen and thirty-six in each township of Washings 
ton Territory shall be reserved for the purpose of being applied 
to common schools in that territory. In all cases where sec- 
tions sixteen and thirty-six, or either or any of them, are 
occupied by actual settlers prior to survey thereof, the county 
commissioners of the coimtiee in which such sections so oc- 
cupied are situated are authorized to locate other lands, to 
an equal amount in sections or fractional sections, as the case 
may be, within their respective counties, in lieu of the sec- 
tions so occupied." 

The act of which this section forms a part became a law 
March 2, 1853. U. S, Rev. Stats., § 2477, provides that, 



PETERSON V. BAKER. 277 

July 1905] Opinion Per Rudkin, J. 

'The right of way for the construction of highways over 
public lands, not reserved for public uses, is hereby granted." 
The act of which this section forms a part became a law 
July 26, 1866. 

Were school lands in the territory of Washington reserved 
for public uses by § 1947, supra, so as to except them from 
the operation of § 2477, supra f We are clearly of the opin- 
ion that they were not. The act of March 2, 1853, was 
simply A declaration of governmental policy, and the title 
to sections 16 and 36 thereafter remained in the general gov- 
ernment, subject to the dominion and control of Congress, 
until otherwise appropriated or disposed of. Thus, in Bark- 
ley V. United States, 3 Wash. Ter. 522, 19 Pac. 36, it was 
held that sections 16 and 36 were public lands of the United 
States, within the provisions of the act of February 25, 1885, 
entitled, "An act to prevent unlawful occupation of public 
lands." The same conclusion was reached in United States 
V. Elliot, 12 Utah 119, 41 Pac. 720, and in United States v. 
Bisel, 8 Mont. 20, 19 Pac. 251. In Burrows v. Kimball, 
11 Utah 149, 41 Pac. 719, it was held that school lands were 
reserved to the United St?ites and under the actual control 
of Congress, until granted to the state or territory. The 
direct question here presented was before the suprme court 
of South Dakota in Riverside Township v. Newton, 11 S. 
D. 120, 75 K W. 899. In that case the court says: 

"Do the foregoing provisions of the Compiled Laws apply 
to school sections, is the decisive question, which must be 
answered affirmatively, unless by the act of Congress above 
quoted the same were ^reserved for public uses.* The mere 
announcement of a governmental policy to withhold, when 
the same shall be surveyed, specified portions of the public 
domain from settlers and purchasers, 'for the purpose of 
being applied to schools of states hereafter to be erected,' 
is neither a grant nor reservation 'for public uses.' The act 
of Congress granting the right of way for the construction 
of highways over public lands, construed with the provisions 
cf our statute, creates an easement of which respondent had 



278 PETERSON ▼. BAKER. 

Opinion Per Rudkin, J. [39 Wash. 

notice, operating uniformly upon all section lines, including 
the boundaries of school sections designed to be leased or 
sold by the state for the purpose of creating a trust fund 
for the benefit of the public schools. Such lands are not re- 
served for, nor are they put to, a public use. Section 236-1: 
of tlie United States Revised Statutes, when considered with 
other provisions relating to the same subject, tends to nega- 
tive the idea that such lands were reserved for public uses 
by providing that Whenever any reservation of public lands 
is brought into market, the commmissioner of the general 
land office shall fix a minimum price, not less than one dollar 
and twenty-five cents per acre, below which such lands shall 
not be disposed of.' Our conclusion therefore is that the law- 
makers have reserved and located a highway along the school 
section line in ' question, which appellant is authorized to 
open and prepare for the use of the public, without allowing 
respondent any compensation in the way of damages." 

See, also, Coleman v, St. Paul etc. R. Co., 38 Minn. 260, 36 
N. W. 638; 26 Am. & Eng. Ency. Law (2d ed.), 357. 

We are therefore of opinion that the land in controversy 
was not "reser\'ed for public uses," within the meaning of 
the exception or reservation contained in section 2477 of the 
United States Revised Statutes, and that there is a valid and 
subsisting public highway across the appellants' lands, under 
the facts agreed upon in this case. It therefore becomes 
unnecessary to decide tlie other questions presented on this 
appeal. There is no error in the record, and the judgment 
is affirmed. 

Mount, C. J., Root, Crow, and Hadley, JJ., concur. 



HART V. CASCADE TIMBER CO. 279 

July 1905] Syllabus. 

(No. 6468. Decided July 21, 1906.) 

Bebnasd Haet, Respondent, v. Cascade Timber Company, 

Appellant} 

Trial — By Juby — Failing to Demand When Set for Trial — 
Discretion. It is discretionary to award a jury trial although the 
same was not demanded when the case was set for trial in the 
manner required by Laws 1903, p. 50, and error cannot be predicated 
thereon. 

Appeal — Review — Evidence — Conclusion — Harmless Error. 
The admission of evidence objected to on the ground that it is a mere 
conclusion of the witness is harmless where the witness had pre- 
viously given substantially the same testimony without objection. 

Same — Evidence Stricken Out. Error cannot be predicated upon 
an incompetent voluntary 'statement of the party^ when being ex- 
amined as a witness, which was immediately stricken but on motion 
of the appellant 

Master and Servant — Neolioence — Evidence — Sufficienct — 
Questions for Jury. In an action for personal injuries sustained by 
a logger caught between a log and a car, by reason of slack in a cable 
upon the drum of a logging engine, the minds of reasonable men may 
differ, and the evidence makes a case for the jury, on the questions 
of negligence, contributory negligence, assumed risk, and negligence 
of a fellow servant, where witnesses testified that the drum was 
constructed to be used with a brake to take up the slack in the 
cable, that the appliances used in place of a brake upon the drum 
were imsafe and dangerous, that plaintiff knew nothing whatever 
concerning them or their operation, that the fellow servant, the 
engineer, operated the same with due care and took up all slack 
In the cable before applying the power, and that the plaintiff was 
injured through the failure of the appliances to take up the slack 
as would have been done in case the brake or a suitable appliance 
had been used, notwithstanding evidence that it was not customary 
to use a brake, the same being dispensed with to lessen the labor 
of the loading crew. 

Damages — Excessive Verdict — ^Reduction. A verdict for $5,000 
damages for personal injuries sustained by a logger who was caught 
between a log and a car and both of his thighs broken, is excessive 
and should be reduced to $3,500, where it appears that he had sub- 
stantially recovered, and would sustain no permanent injury impair- 
ing his earning ability, and that $1,500 would fully compensate him 
for his loss of wages, and where no claim is made for medical 
attendance. 

1 Reported in 81 Pac. 738. 



280 HART V. CASCADE TIMBER CO. 

Opinion Per Cbow, J. [39 Wash. 

Appeal from a judgment of the superior court for Pierce 
county, Snell, J., entered June 17, 1904, upon the verdict 
of a jury rendered in favor of the plaintiff for $5,000 dam- 
ages for personal injuries sustained by a logger engaged in 
loading logs. Affirmed, on condition of the remission of 
$1,500. 

Reynolds & Griggs, for appellant. 

A, J. Speckert, James F. O'Brien, and Charles 0. Bates, 
for respondent. 

Crow, J. — This action was instituted in the superior court 
of Pierce county to recover damages for personal injuries. 
A verdict for $5,000 being rendered in favor of respondent, 
and final judgment entered thereon, this appeal has been 
taken. 

At the time of the accident complained of, appellant was 
engaged in tlie logging business, at a certain camp on the Ta- 
coma Eastern Railroad, using a certain donkey engine to 
bring in logs from the woods and load the same upon cars. 
The donkey engine had two certain drums or cylinders, 
around which lines of cables were wound. The lower one 
towards the front was known as the main line drum, and the 
upper or rear one as the loading drum. The lines upon said 
drums were cables. The main line, being about 1,000 feet 
in length, was used for the purpose of drawing in logs from 
the woods to a certain loading platform located near the rail- 
way track, about thirty feet from, and in front of, the donkey 
engine. The shorter line upon the loading drum was used 
for the purpose of hauling logs from the loading platform 
onto the cars. This line passed through a block attached to 
certain timbers on which tJie engine rested, passed therefrom 
through a block at the top of a gin pole immediately over a 
car, and then dropped to the point where the loading was 
being done. 

Respondent, an employee of appellant, was one of the load- 



HART V. CASCADE TIMBER CO. 281 

July 1906] Opinion Per Cbow, J. 

ing gang, being known as the ground loader. The donkey 
engine had a brake upon the long line drum, and, as original- 
ly built, also had a brake upon the loading drum. The lat- 
ter brake, however, was not used. As it had been placed 
upon the loading drum to create friction and prevent the 
loading line from becoming slack, it became necessary, in its 
absence, to adopt some other contrivance for preventing such 
slack, in order that the cable of the loading drum might be 
prevented from falling upon the main line drum. For this 
purpose, a certain iron roller was first placed upon stanchions 
standing immediately in :front of the main line drum, the 
line from the loading drum passing over, and the main line 
imder, said roller, which respondent claims was located at 
a height sufficient to prevent the slack of the loading line 
from falling upon the main line drum. 

About one week prior to the accident^ it became necessary 
to remove the main drum, and make certain repairs, which 
were made by the engineer and appellant's master mechanic. 
In order that said main drum might be removed, it became 
necessary to take out the iron roller above mentioned. After- 
wards, instead of replacing the iron roller, the master me- 
chanic suspended wires from two wooden stanchions in front 
of the engine, each of said wires falling down in the form 
of a loop, and in said loops placed a stick, and passed the 
line from the loading drum over, and the line from the main 
drum under, such stick; the intention being that said device 
should take the place, and perform the functions, of the iron 
roller which had been removed. There is evidence tending 
to show that at the time of this change the engineer, who 
assisted in the repairs, complained to his superior, the master 
mechanic, that the new contrivance was unsafe and danger- 
ous. This statement, however, is denied by the master 
mechanic. 

On the day of the accident, respondent was engaged in 
loading a certain log, and in so doing he fastened the end of 
the line from the loading drum aroimd the log, and gave a 



282 HART T. CASCAJ>E TIMBER CO. 

Opinion Per Cbow, J. [39 Wash. 

signal to the engineer to apply power to the loading drum. 
This the engineer did, but the log, being irregular in form, 
did not pass evenly upon certain skids which were being 
used in loading, one end of the log falling below and b^ind 
one of said skids. Thereupon respondent signaled the en- 
gineer to turn off the power, whidi being done^ respondent, 
taking a peevy or cant hook, stepped in between the log and 
the car, for the purpose of pushing or rolling the log back 
into a proper position. By reason of the line from the load- 
ing drum being attached to the loj, it was very taut, and 
when the power was released, the loading drum havijig a 
tendency to revolve in an opposite direction, it became slack. 

While respondent was in the position just described, the 
engineer received a signal to apply power to the main line 
drum for the purpose of drawing another log from the woods. 
The engineer testified that before doing so he took up all 
the slack in the loading line. Thereupon he immediately 
applied the power to the main line drum, which began to 
revolve and draw the log from the woods. When about 100 
feet of the main line had been drawn in, the slack of ths 
loading line fell upon the main line, was caught, and began 
to wind around the main drum. This caused the loading 
line to draw the log to which it was attached toward re- 
spondent, crushed him against the car, and broke each of 
his thigh bones. 

Respondent alleged negligence of appellant: (1) In fail- 
ing to maintain a brake upon said loading drum; (2) in 
failing to maintain a proper and reasonably safe appliance 
for keeping the lines apart, and preventing the loading line 
from falling upon the main drum. Respondent also con- 
tended, that the stanchions and iron roller, originally placed 
in front of the main line drum, constituted a proper and 
reasonably safe contrivance for keeping said lines apart ; that 
the stick suspended from the wires, which was afterwards 
substituted therefor, was an improper and dangerous appli- 
ance; and that tlie absence of the brake from the loading 



HART V. CASCADE TIMBER CO. 283 

July 1905] Opinion Per Crow, J. 

drum, and the use of such stick of timber suspended from 
said wires, were the proximate cause of his injuries. Re- 
spondent also alleged, that his duty in no way required him 
to have anything to do with the engine or its appliances, or 
to have any knowledge thereof; that he was ignorant of 
the dangers arising from the absence of said brake or the 
use of said improper appliance; that he was entirely with- 
out fault, and that said injuries were the direct result of 
the negligence of appellant in failing to provide reasonably 
safe appliances or machinery for the use of its servants. 
Appellant has assigned numerous errors which we will con- 
sider in their order. 

^1) It is first contended that the trial court erred in 
calling a jury to try the cause, appellant claiming respondent 
had waived a jury trial, and that no jury fee had been de- 
posited, prior to the calling of the case for trial. There is 
no merit in this contention. Knapp v. Order of Pendo, 
36 Wash. 601, 79 Pac. 209. 

(2) The engineer, being a witness for respondent, waa 
asked, "Would the accident have happened if the roller had 
been there instead of the pole?" and answered, "Xo, sir." 
The motion of appellant to strike the answer as a mere con- 
clusion was denied, and upon this ruling error is assigned. 

In Sears v. Seattle Consol St. R. Co., 6 Wash. 227, 33 
Pac. 389, 1081, this court said: 

* 

"It is a general rule of evidence that witnesses may not 
give opinions as to matters of fact which the court or jury 
are ultimately to determine. But this rule is not without 
exception. And the exception is not confined to the evi- 
dence of experts who may give opinions on questions requir- 
ing special skill, knowledge or learning, but includes the 
evidence of common observers who may state the results of 
their observations in regard to ordinary appearances and 
conditions of things which cannot be produced to a jury 
exactly as they were observed by the witness at the time." 

The record shows that the witness, without objection, had 
previously given substantially the same testimony, saying he 



284 HART V. CASCADE TIMBER CO. 

Opinion Per Cbow, J. [39 Wash. 

had told the master mechanic the pole would not work as 
good as the roller, and some one was going to get hurt on 
it We therefore do not think prejudicial error was com- 
mitted in permitting this question and answer to stand. 

(3) Respondent, as a witness in his own behalf, after 
testifying about his position, and as to how the log had been 
drawn against him, was asked: "Well, what was done to 
you then, Barney?" and answered: 

"Well, I fell across the log, and Johnny, the engineer — 
I hollered, and the engineer came running, and he says, 'You 
ain't hurt' ; and I says, 'Only two legs broke,' and he says, 
'I told him to fix that roller or some one would get hurt 
on it.' " 

Appellant immediately moved the court to strike the an- 
swer, and it was stricken. Appellant now contends that 
this was a voluntary statement of respondent, and that, when 
the answer was once given, irreparable mischief was done, 
although it was stricken, and insists that the order striking 
the answer could not, and did not, cure the prejudicial 
error. 

We do not think the contention of the appellant can be 
sustained. We find nothing in the general testimony of re- 
spondent to show that he was undertaking to make improper 
or voluntary statements, nor is there anything to indicate 
that the statement was suggested to him, or in any manner 
drawn out by his counsel. If this court were to reverse a 
case every time a witness, in the presence of a jury, inno- 
cently volunteers an improper or irrelevant statement, which 
appellant regarded as prejudicial, very few judgments of 
a trial court would be sustained. The statement having been 
withdrawn from the jury, we fail to find that appellant was 
prejudiced by the incident 

(4) At the close of the respondent's evidence, appellant 
moved for a nonsuit, which was denied. The principal points 
relied upon in support of said motion were contributory neg- 
ligence, assumed risk, negligence of fellow servant, and a 



HART V. CASCADE TIMBER CO. 285 

July 1905] Opinion Per Crow, J. 

contention that^ from, the evidence introduced on behalf of 
respondent, it clearly appeared that appellant, in providing 
machinery and appliances^ to be used by his servants, had 
exercised ordinary and reasonable care and was guilty of 
no negligence whatever. 

Upon the question of contributory negligence, it is a well 
established principal that such issue will not be withdrawn 
from the consideration of the jury, when the minds of rea- 
sonable men might differ as to whether or not such negligence 
in fact existed. Jordan v. Seattle, 26 Wash. 61, 66 Pac. 
114; Christianson v. Pacific Bridge Co., 27 Wash. 582, 68 
Pac. 191 ; Cook v. Stimson Mill Co., 36 Wash. 36, 78 Pac. 
39. From an examination of the evidence in this case, we 
are satisfied that the issue of contributory negligence was 
properly submitted to the jury. What has been said as to 
the issue of contributory negligence is true, also, as to that 
of assumed risk. There was positive evidence to the effect 
that respondent knew nothing of the construction, manage- 
ment, or use of the engine or its appliances; that he had 
nothing whatever to do with providing or operating the same ; 
and that he had not been advised as to any dangers attendant 
upon the use of such engine or appliances. This was the 
testinlony, not only of respondent himself, but also of the 
engineer. Appellant contends that respondent assisted in 
the arrangement of this very stick which was substituted for 
the iron roller and used at the time of the accident. While 
there was some evidence upon this point, the question of his 
knowledge, or means of knowing what danger, if any, existed, 
was one upon which the evidence was sufficiently conflicting to 
warrant the issue of assumed risk being referred to the jury. 

Upon the issue of negligence of a fellow servant, it was 
contended by appellant that the accident was the result of 
the negligence of one John Sipe, the engineer, respondent's 
fellow servant, in failing to take up the slack of the loading 
line before operating the main line drum, and that such 
negligence was the sole and proximate cause of the accident. 



286 HART V. CASCADE TIMBER CO. 

Opinion Per Cbow, J. [39 Wash. 

Substantially all evidence bearing upon this question, and 
introduced by respondent, tends to show that the engineer 
did take up the slack of the loading line before applying 
power to the main line drum ; respondent's theory being that, 
after the main line drum was started, its motion and the 
rising and falling of the suspended stick, caused the load- 
ing drum, in the absence of its brake, to revolve, producing 
slack in its line, which becoming entangled with the main 
line caused the accident Upon the evidence it was certainly 
a question of fact, to be decided by the jury, whether or 
not the respondent's fellow servant was guilty of neglig^ice, 
and this issue was also properly submitted. 

The main contention of appellant upon the motion for a 
nonsuit seems to be that it had fully discharged its duty as 
master in selecting machinery and appliances to be used by 
its employees. It contends that the absence of a brake from 
the loading drum was not n^ligencei, for the reason that the 
universal custom of those operating donkey engines in logging 
camps is to operate such drum without a brake; that the 
brake had been removed for the benefit of the loading crew, 
whose duty it was to draw out the line from the loading 
drum ; that, as the brake caused friction, the loaders objected 
to extra work and labor caused thereby, and that the brake 
was removed for their sole benefit. 

It is true^ the evidence fails to show that any brake was 
ever used on the loading drum of this engine. It is also 
true that the evidence utterly fails to show that, in the opera- 
tion of donkey engines in logging camps generally, it was 
customary to use such a brake. Doubtless the brake was 
removed for the purpose of lightening the labor of the men 
who drew out the line. The engine, however, as originally 
constructed, contemplated the use of such a brake, and it 
might readily be inferred from the evidence that the very 
fact of the removal of the brake neoessitated the iron roller, 
or some other proper appliance^ in front of the engine, to 
keep the lines apart and prevent accidents. The brake be- 



HART V. CASCADE TIMBER CO. 287 

July 1905] Opinion Per Cbow, J. 

ing removed, it might then become necessary to determine 
what was a proper and reasonably safe appliance to ac- 
complish this purpose. Upon this point the evidence is con- 
flicting. Witnesses for respondent testified that the pole 
suspended from the wires was improper, unsafe, and danger- 
ous ; while witnesses for appellant testified differently ; some 
saying that the suspended pole was proper; others, that a 
stationary pole was proper; and another, that no such ap- 
pliance whatever should be used, but that the engineer should 
constantly watch the slack and take it up by the use of the 
friction lever on the loading drum. We think that, under 
all the evidence as disclosed by the record, an issue arose as 
to whether the substitution of the pole for the iron roller, 
by the master mechanic, was or waa not the adoption of a 
dangerous and unsafe appliance, or was the adoption of one 
that was reasonably safe and proper, and that this issue was 
one of fact to be decided by the jury. Labatt, Master & 
Servant, § 43 ; Goe v. Northern Pac. R. Co., 30 Wash. 654, 
71 Pac. 182; Gaudie v. Northern Pac. R. Co., 34 Wash. 34, 
74 Pac 1009 ; Swift & Co. v. HoloubeJc, 60 IS^eb. 784, 84 
N. W. 249; McGregor v. Reid, 178 111. 464, 53 K E. 323, 
69 Am. St. 332; Detroit etc. R. Co. v. Van Steinhurg, 17 
Mich. 99; Ashman v. Flint etc. R. Co., 90 Mich. 567, 51 
N. W. 645 ; Kyle v. Southern Elec. L. & Power Co., 174 Pa. 
St 570, 34 Atl. 323. 

(5) ^Numerous assignments of error are based upon the 
giving of certain instructions which were requested by re- 
spondent, and also upon the refusal to give other instruc- 
tions requested by appellant. We will not enter into a spe- 
cific or analytical discussion of the various instructions given 
or refused, but will say that we have carefully examined 
all the instructions given and refused and are convinced, 
(1) that> if any of the instructions given by the court at 
the request of respondent are subject to any criticism what- 
ever, the same were amply cured by other instructions given 
at appellant's request; and (2) that all instructions requested 



288 HART V. CASCADE TIMBER CO. 

Opinion Per Crow, J. [39 WasK 

by appellant and refused by the court were fully covered by 
other instructions actually given. In fact, the instructions 
given by the court are complete and, as we think, correctly 
state the law. 

(6) Appellant contends that the damages awarded, $5,» 
000, are excessive. From an examination of the entire 
record, and a most careful and painstaking consideration of 
the evidence, we are convinced that this contention should 
be sustained. While respondent suffered a most painful and 
serious accident, the evidence shows his recovery has been 
almost a perfect one. It is true, some of the testimony tended 
to show certain injuries to have still existed at the time 
of the trial, but it fails to show such injuries to be per- 
manent. On the contrary, the weight of the evidence seems 
to be that, within a period of perhaps four or five months 
from the date of the trial, respondent would probably enjoy 
substantial or complete recovery. It also shows that he will 
be able to resume work at his occupation of logger ; that he 
has a good pair of legs ; that his system is in a healthy and 
well nourished condition; that the permanent injuries he 
has sustained, if any, are not of such a character as to impair 
the usefulness of his legs or prevent him from perfonning 
hard labor. The accident occurred on the I7th day of July, 
1903, and the trial commenced about eleven months later, 
on the 14th day of June, 1904. At that time appellant had 
been walking, and although he carried a cane, he used it 
only a portion of the time. He was examined by comp^ent 
surgeons appointed by the court, whose evidence disclosed a 
very substantial recovery. At the time of the accident, ap- 
pellant was earning $3 per day. Were we to concede that he 
had lost, at the time of the trial, and would thereafter lose, 
a sufficient amount of time to constitute in all eighteen 
months, his loss in wages could not exceed $1,600. No claim 
is made for hospital fees or doctor bills, and we cannot as- 
sume any such claim existed. If respondent had been allowed 
$1,500 for loss of time, and $2,000 in addition thereto for 



HART V. CASCADE TIMBER CO. 289 

July 1905] Opinion Per Cbow, J. 

pain and suffering and for any permanent injury which the 
evidence shows he may have actually sustained, such an 
award, making a total of $3,500, would certainly be ample 
compensation. 

It is not the province of the court to weigh testimony and 
determine the amount of damages that shall or shall not 
be awarded in any given case, but a duty does devolve upon 
the court to restrain juries from awarding verdicts unneces- 
sarily large, or not warranted by the evidence. The pur- 
pose of awarding damages is to give compensation for loss 
or injury actually sustained, and when a sufficient amount 
has been- awarded to accomplish such purpose, no additional 
award should be permitted. While we hesitate to interfere 
with the verdict of a jury estimating damages, we are never- 
theless constrained to believe that an award in - excess of 
$3,500 should not, under the evidence, have been made in 
this action. 

It is ordered that if, within thirty days from the filing 
of the remittitur herein, the respondent shall file with the 
clerk of the superior court of Pierce county, Washington, 
his written statement agreeing to accept a judgment for 
$3,500, the judgment of the superior court be modified by 
reducing the damages awarded herein from $5,000 to $3,500, 
the latter sum to bear interest from the date of the trial. Upon 
the failure of said respondent to accept said sum of $3,500 
and interest within said time, it is ordered that a new trial 
bo granted. The appellant will recover costs in this court 

Mount, C. J., Root, and Rudkin, JJ., concur. 

Hadley and Fullebton, JJ., took no part 

19—39 WA8H. 



290 CI^MANS Y. WESTERN. 

Opinion Per Mouirr, C. J. [39 Wash. 

(No. 556S. Decided July 22, 1905.) 

H. B. Clemans, as Executor etc.. Appellant, v. Ada H. 

Westebn, Respondent} 

DivoBCB — ^Abandonment — Evidence — Sufficienct. A clear case of 
abandonment Is shown^ where, after the dismissal of an action for 
divorce brought by the wife on the ground of abandonment, the 
husband returned to the state of Washington, but not to his home, 
and refused for four years to live with or make any provision for 
his family, although requested to do so. 

DrvoBCE — DnrisiON of Peopebty — ^Aix Awabded to Wife. Upon 
granting a divorce to a wife on the ground of abandonment, and 
awarding to her the custody of three minor children, it is Just to 
award her all the property, where it appears that it had been con- 
veyed to her, heavily incumbered eight years before, the equity not 
exceeding $2,500, and that the wife, unassisted, after eight years of 
hardship, had saved it from foreclosure and paid off more than |3,000 
of the indebtedness against it. 

New Tbial — ^Accident and Subpbise — ^Absence of Wptness — ^Fail- 
use TO Request Continuance. Accident and surprise cannot be 
urged as ground for a new trial in an action for a divorce, in that 
the appellant's son, alleged to be a material witness, suddenly dis- 
appeared during the trial and could not be produced, when the 
appellant failed to subpoena him as a witness, or to request a con- 
tinuance, but submitted the case on other evidence without sug- 
gesting the fact that he relied upon his son's evidence. 

Appeal from a judgment of the superior court for King 
county, Bell, J., entered December 12, 1904, upon findings 
in favor of the defendant, after a trial before the court with- 
out a jury, granting a divorce and awarding property and 
the custody of children, upon a cross-complaint. Affirmed. 

Jacobs & Jacobs and Walter S, Fulton, for appellant. 
Smith & Cole, for respondent. 

Mount, C. J. — This appeal is from a judgment of the 
lower court denying a decree of divorce to Ilenry H. West- 
em, and granting a decree to respondent, and awarding her 

1 Reported in 81 Pac. 824. 



CLEMANS V. WESTERN. 291 

July 1905] Opinion Per Mount, C. J. 

the care and custody of the minor children, and all the 
property, which stood in her name. Since the appeal was 
laken, the appellant has died, and, upon stipulation, H. B. 
Clemans, executor of the last will and testament of the de- 
ceased, was substituted for the appellant. 

The complaint, after alleging the marriage of the parties 
in April, 1882, and after alleging^ that three children had 
been bom to them, viz., a son who is twenty years of age, 
and two daughters aged respectively fourteen and twelve at 
the time the Action was begun, alleged, that at the time of 
the marriage the plaintiff, H. H. Western, was possessed 
of certain real property as his separate estate ; that in May, 
1896, being about to start for Alaska, he deeded all of his 
property, both real and personal, to his wife, in order to 
provide for her and the family and especially to provide for 
his family in case of his death ; that there was no other con- 
sideration for said deed, and that at the time the deed was 
made the value of the property was $20,000, subject to in- 
cumbrances amounting to less than $6,000. The complaint 
then alleged that, in the years 1900, 1901, and 1903, the 
respondent committed certain specified acts of adultery, and 
prayed for a divorce, for the custody of the minor children, 
and for a just and equitable division of the property. 

The answer of the respondent denied that the property was 
worth to exceed $10,000, denied that the property was sub- 
ject to liens less than $6,000, but alleged that mortgages and 
judgment liens at that time amounted to $7,500, and that 
unpaid bills amounted to many hundreds of dollars, and 
denied the acts of adultery. For a further defense the an- 
swer averred, that in the year 1894 respondent, out of her 
separate means, advanced to plaintiff the sum of $1,400, 
in consideration that he would convey the real estate to her, 
subject to the mortgages then existing, which was done at 
that time; that in the year 1896, when by bad management 
the property had become depreciated in value and heavily 
incumbered, and plaintiff was unable to meet the interest 



1 



292 CLEMANS V. WESTERN. 

Opinion Per Mount, C. J. [39 Wash. 

charges, mortgages maturing, judgments, unpaid taxes, and 
open accounts, he advised respondent that they abandon the 
property, which she refused to do; that thereupon plain- 
tiff conveyed to respondent all of his property, both real 
and personal, and went to Alaska, leaving her to her own 
resources without other means of support ; that, by her own 
energy and unaided, she has since that time paid the taxes, 
judgments, and accounts against her home, and reduced the 
mortgage indebtedness to the sum of $4,200; that in 1896 
the plaintiff abandoned the respondent and her children, 
and has neglected and refused to return to them, and has 
provided nothing for their support, although he has been at 
all times a strong and able-bodied man ; that for three years 
last past he has been living in and about King county, where 
the action was begun, and that respondent has been at all 
times ready and willing to live with him, and has always 
been a dutiful, faithful, and affectionate wife. The answer 
prayed for a decree of divorce, and for the care and custody 
of the children. 

The reply of the plaintiff denied the allegations of the 
answer, and alleged that, in the year 1899, defendant com- 
menced an action for divorce upon the ground of abandon- 
ment prior to that time ; that the action was tried and, upon 
the evidence, dismissed by the court, and that respondent 
oaight now to be estopped from setting up as a ground of 
divorce a cause accruing prior to that decree. Upon issues 
substantially as stated above, the cause came on for trial 
on the 18th day of May, 1904. On the next day, at the 
conclusion of the evidence, the court announced that there 
was no suiBcient evidence to support the allegations of 
adultery in the complaint, and that the prayer of the com- 
plaint would therefor© be denied. The court at that time 
also announced that the allegations of the cross-oomplaint 
were sustained, and that the prayer thereof would be granted. 
The findings and decree, however, were not signed until De- 
cember 4, 1904, at which time full findings and a decree 



CLEMANS V. WESTERN. 293 

July 1905] Opinion Per Mount, C. J. 

were signed and entered in favor of respondent. This appeal 
is prosecuted from that decree. 

We have carefully examined all the evidence in the record, 
and are satisfied that what little evidence there is on the part 
of the plaintiff as to the adultery of the respondent is fully 
met and overcome by the evidence on her behalf. The find- 
ing of the lower court is the only one which could have been 
justly made upon that issue. Upon the question of abandon- 
ment, the evidence conclusively shows that the plaintiff first 
left the respondent in May, 1896, and went to Alaska. At 
that time he transferred all his property to his wifcj, sub- 
ject to his debts. She was apparently willing that he should 
go to Alaska, and acquiesced therein. He returned in the 
fall of the same year, and remained at home until the spring 
of 1898, when he again went to Alaska. After he had been 
gone about a year, respondent brought an action in the su- 
perior court of King county for divorce on the ground of 
abandonment. She obtained service of the summons by pub- 
lication. Her husband made no appearance, having received 
no actual notice, but the prosecuting attorney of King county 
appeared on behalf of the state and, upon a hearing, the 
action was dismissed. In the fall of 1900 the plaintiff 
again returned to the state of Washington, but not to his 
homa He visited his home but once or twice during the 
next four years, and refused to live with his family, though 
requested so to do, and made na provision for any of them, 
and in 1904 he brought this action. These facta we think 
make a clear case of abandonment of respondent and the 
children by the plaintiff after the year 1900. The finding 
of the court in this respect is fully justified. 

Appellant contends that, because the trial court awarded 
all the property to the respondent; such award was not a 
"just and equitable disposition" thereof. At the time the 
plaintiff first went to Alaska in 1896, he turned over all 
his property to his wife. This property consisted of about 
two hundred and forty-five acres of land, most of whidi 



294 CLEaiANS V. WESTERN. 

Opinion Per Mouitt, 0. J. [39 WaalL 

was fit only for pasture. There were, also, about forty-two 
head of cows, some few horses, and farming implements. 
All this property was leased for a term of three years, at 
the monthly rental of $115, with a small garden and house 
reserved to the respondent. It is not definitely shown by 
the evidence what the value of the property was at that 
time, but it is apparently conceded that it was worth about 
$10,000, and that the debts against it amounted to more 
than $7,500. Respondent testified that the property was 
in poor condition and depreciating in value», and that they 
were unable to pay their debts or the interest, and that the 
plaintiff desired at that time to abandon the property to the 
debts, and this was not disputed by the plaintiff. Respondent 
collected' very little from the lease, and had- trouble with 
the lessees. Many of the cattle died, or were killed by 
oflScers because of an infectious disease. The rest were sold 
for the purpose of paying debts. Respondent, after eight 
years of toil and hardship, unassisted by her husband, suc- 
ceeded in saving the property from foreclosure, and in re* 
ducing the debts to about $4,200 at the time of the trial, 
and in the meantime provided as best she could for her- 
self and minor children, with no assistance from her hus- 
band. In view of these facts, and of the fact that she was 
awarded the care and custody of the minor children, it 
appears just that she should have all the property remaining 
for their and her support. 

There is one other point made on this appeal. After the 
court had announced what the decree would be, appellant 
filed a motion for a new trial upon the ground, among 
others, of "accident and surprise which ordinary prudence 
could not have guarded against." In support of this motion, 
affidavits were filed showing, that the son, Peter Western, 
was a material witness on behalf of his father ; that he was 
with his father almost daily previous to the trial and until 
within a few days of the same> when he disappeared and 
all efforts to find him were of no avaiL He was afterwards 



CLEMANS V. WESTERN. 296 

July 1905] Opinion Per Mount, C. J. 

located in California where he was detained as a recruit in 
the United States army. From California he went to the 
Philippine Islands, as a member of the Fourteenth United 
States cavalry. No subpoena had been served upon the boy, 
and no continuance was asked by reason of his absence, and 
at the close of the case no mention appears to have been 
made of the fact that the plaintiff relied upon the evidence 
of the son which could not then be had. But the case appears 
to have been rested entirely upon the evidence then intro- 
duced. Three uncontradicted aflSdavits were filed on behalf 
of the respondent, to the effect that the son, Peter, was in 
the city of Seattle during the trial, and did not leave there 
for California until the next day after the conclusion of 
the trial. At any rate, we think ordinary prudence required 
that a subpoena should have been served upon the witness; 
or, when it was discovered before the trial that he was 
absent and his testimony could not be had, a continuance 
should have been requested upon a showing. These precau- 
tions having been omitted, and no mention made of the 
absence of this witness until after an adverse decision, and 
the case having been submitted on other evidence, appellant 
ought not now to be heard to complain. 

We have considered this case upon the merits, disregarding 
the fact that the plaintiff is now dead, because no question 
is raised upon that jpoint either in the briefs or on the oral 
argument, and because property interests are involved de- 
pending upon the decree. 

Finding no error in the record, the judgment is affirmed. 

Root, Fui-lerton, and IIadley, JJ., concur. 

EuDKiN, J. (concurring). — I concur in the result, but 
think the appeal should have been dismissed. The mar- 
riage has been dissolved by death since the appeal was prose- 
cuted, and it is an idle formality to either affirm or reverse 
the decree of divorce. It also appears that all the property 
in controversy was the separate property of the wife. The 



296 GLASS V. BUTTNBR. 

Statement of Case. [39 Wash. 

right of the husband to have a portion of such property 
awarded to him upon the granting of a divorce is personal 
to himself and dies with him. It is not subject to his testa- 
mentary disposition and will not pass to his heirs or personal 
representatives by operation of law. The executor, there- 
fore, has no interest in the litigation and should not be 
permitted to prosecute or continue the appeal. 

Ckow, J., concurs with Rudkin, J. 



(No. 6364. Decided July 24, 1905.) 

D. n. Glass, Appellant, v. W. II. Buttneb et aL, 

Respondents} 

HUABAND AND WiFE — ACTIONS AGAINST — COMMUNITY PrOPEKTT — 

Replevin — Default of Husband — ^Effect on Defense by Wife. In 
replevin brought against a husband and wife, who defend jointly, 
claiming the property as community personalty, a default judgment 
against the husband for failure to answer interrogatories, is not 
binding on the wife, since under Bal. Code, § 4827, she is entitled 
to defend in her own right upon the issues raised by her answer; 
and a judgment of dismissal on plaintiff's failure to prove title. Is 
proper. 

Same — ^Witnesses — Competency on Valuations. In replevin a 
witness Is shown to be competent on the subject of the value of the 
property when she stated that she knew the cost of the articles and 
their value. 

Appeal from a judgment of the superior court for King 
county, Hatch, J., entered December 1, 1903, dismissing 
an action of replevin, upon denying plaintiff's motion for 
judgment on the record and election to stand thereon. 
AflSrmed. 

L. //. Wheeler and T. 0. Abbott, for appellant. 

Crary £ Ogdcn and Joseph M, Glasgow, for respondents. 

iReported in 81 Pac. 699. 



GLASS V. BUTTNER. 297 

July 1905] Opinion Per Mouin*, C. J. 

Mount, C. J. — ^Appellant brought this action in the lower 
court to recover certain household goods, alleged to be his 
property, and wrongfully withheld. When the action wag 
begun, a writ of replevin was issued on the allegations of 
the complaint, and the sheriff took into his possession a 
certain portion of the property. Thereafter the respondents, 
being husband and wife, jointly answered the complaint, 
and denied all the allegations thereof, and alleged that they 
were the owners of the goods. Subsequently the appellant 
propounded certain interrogatories to be answered by each 
of the respondents. W. H. Buttner failed to answer the 
interrogatories, by reason of the fact that he was absent 
from the state. Mrs. Buttner answered the interrogatories 
propounded to her, which interrogatories were substantially 
the same as the ones propounded to her husband. The 
appellant, upon the failure of W. H. Buttner to answer 
the interrogatories, moved for a judgment against him for 
failure to answer within the time allowed by law. This 
motion was granted, and a judgment entered against the 
said W. H. Buttner for the possession of the goods. 

Thereafter the case came on for trial upon the issues 
made by the complaint and the answer of Mrs. Buttner. 
The appellant objected to any other proceedings in the case, 
upon the ground that the judgment rendered against the 
husband disposed of the questions in litigation, and moved 
the court to dismiss the action as to Mrs. Buttner. The 
court overruled the objection and denied the motion, upon 
the ground that the order and judgment entered against the 
husband, who was a codefendant, was an interlocutory order 
and not final. Appellant thereupon announced that he would 
stand upon his motion, and the court ordered judgment in 
favor of the respondent Mrs. Buttner, for the return of the 
goods or their value. Subsequently, upon a hearing as to 
the value of the goods, the court entered a judgment in 
favor of the respondent Mrs. Buttner, for $470, which was 
found to be the value of the goods taken by the appellant 



1 



298 GLASS V. BUTTNEJR. 

Opinion Per Mount, C. J. [39 Wash. 

Plaintiff appeals, and contends that the judgment entered 
against W. 11. Buttner was conclusive of the case, because 
it was admitted that the property was community property, 
and therefore Mrs. Buttner was not a necessary party. 

It is true that Bal. Code^ § 4490, gives the husband the 
management and control of the community personal prop- 
erty, with a like power of disposition as he has of his separate 
personal property. But the appellant was not content to sue 
the husband alone for the possession of the property. He 
joined both the husband and wife^ and alleged that both 
wrongfully withheld the possession thereof from the plain- 
tiff. The defendants answered jointly, and denied that the 
property belonged to the plaintiff, and denied that he was 
entitled to the possession thereof. The answer of the hus- 
band was stricken because he failed to answer certain inter- 
rogatories within time. He was defaulted and judgment 
taken against him. But the answer of the wife still stood, 
denying the allegations of the complaint, and the case was 
completely at issue as to her. If her answer was true, she 
had a community interest in the property and none of it 
belonged to the plaintiff and he had no right to its possession. 
The statute provides, at Bal. Code^ § 4827, that, 

"If a husband and wife be sued together, the wife may 
defend for her own right, and if the husband neglect to 
defend, she may defend for his right also. And she may 
defend in all cases in which she is interested, whether she 
is sued with her husband or not." 

We have no doubt that, under this last clause, the wife 
was authorized to defend in this case, and being so author- 
ized, it became necessary for the plaintiff to prove his owner- 
ship of tlie property and that it was wrongfully withheld 
from him. Having stood upon his motion to dismiss and 
failing to make proof of his complaint, the court properly 
directed judgment against him. The judgment against the 
husband was no more than a default judgment^ and was not 
final under the circumstances. 



GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 299 
July 1905] Syllabus. 

It is next contended that, upon the trial on the question 
of the value of the i^roperty, the only witness called showed 
that she was not competent to testify as to the values. We 
find, however that the witness stated that she knew the cost 
of the articles, and that she knew the value. Under these 
circumstances, she was certainly a competent witness. 

There is no error in the record, and the judgme«nt is 
aflSrmed. 

RuDKiN, Hadley, Crow, and Root, JJ., concur. 

FuLLERTON, J., took uo part. 



(No. 5509. Decided July 24, 1906.) 

Globe Navigation Company, Limited, Respondent, 
V. Maryland Casualty Company, Appellant} 

Indemnity — Cost of Defending Suit — Liability Upon One of 
Several Causes. Where an Indemnity company was required by its 
bond to defend actions for negligence at its own expense, and made 
defense to an action for negligence, in which was joined, also, a 
right of action upon a maritime contract for medical attendance, it 
is liable for all the costs and expense incurred, where the record fails 
to show what amount was expended to establish the defense to the 
cause of action upon the maritime contract. 

Estoppel — Indemnity — Bonds — Indemnity Against Personal In- 
juries From Negligence — Recovery on Maritime Contract — Surety's 
Defense of Suit — Dismissal of Appeal With Promise to Pay Judg- 
ment. An indemnity company which, in defending an action for a 
loss, requests the dismissal of the appeal and promises to pay the 
judgment, is estopped to assert that it did not know the true nature 
of the claim and is not liable for the amount of the judgment, where 
it appears that, pursuant to its bond, it undertook the defense through 
attorneys selected by it, upon representations of the defendant, made 
in good faith, that the action was to recover for negligence in the 
operation of a ship, covered by the bond, although a right of action 
upon a maritime contract not covered by the bond was included, 
upon which judgment was entered, the claim for negligence being 
defeated. 

1 Reported in 81 Pac. 826. 



300 GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 

Citations of Counsel. [39 Wash. 

EsTOFFEL — Intent. A design to mislead is not necessary to create 
an estoppel, vhere the conduct is such as to induce a reasonable 
man to act upon it, and the defendant was warranted in assuming 
that the unconditional order to dismiss the appeal was advisedly 
made. 

Same — ^Equity. It cannot be urged to defeat the estoppel that 
the parties stood upon an equal footing, since the duty of making the 
defense devolved upon the indemnity company. 

Same — Knowijedge of Facts — ^Negligence. In such a case, the 
estoppel is not defeated by reason of the fact that the company did 
not have full knowledge of the facts respecting the judgment, which 
was entered in Hawaii, where it had a copy of the libel and was in 
communication by means of which the fact could have been ascer- 
tained; since it was reasonably under obligations to ascertain the 
facts, and was more than ordinarily negligent in ordering the dis- 
missal without doing so; and since it is bound by the knowledge of 
the attorneys, who only nominally represented the defendant. 

Same>— Prejudice to Effect Estopfel. An abandonment of the 
right of appeal is presumed to be prejudicial, hence the estoppel was 
not without prejudice from the fact that the judgment was without 
error and would have been affirmed; since that fact cannot be dem- 
onstrated, and evidence to prove it is inadmissible. 

Appeal from a judgment of the superior court for King 
county, Albertson, J., entered October 29, 1904, upon find- 
ings in favor of the plaintiff, after a trial before the court, 
a jury being waived, in an action upon an indemnity bond- 
Affirmed 

Graves, Palmer, Brown & Murphy, for appellant. There 
can be no estoppel where the party did not have full knowl- 
edge of the facts, unless its appearance was the result of 
gross negligence. Hughes v. New York Life Ins. Co., 32 
Wash. 1, 72 Pac. 452 ; 11 Am. & Eng. Ency. Law (2d ed.), 
433; 2 Herman, Estoppel & Res Judicata, p. 108, § 957; 
Wearer v. Peasley, 163 111. 251, 45 X. E. 119, 54 Am. St. 
469; Ilammond v. Evans, 23 Ind. Appc 501, 55 K E. 784; 
Crabtree v. Bank of ^y^nchester, 108 Tenn. 483, 67 S. W. 
797; Baldwin v. German Ins. Co., 113 Iowa 314, 85 N. W. 
26, 86 Am. St. 375 ; Smith v. Sprague, 119 Mich. 148, 77 
K W. 689, 75 Am. St. 384; Kirchman v. Standard Coal 



GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 301 
July 1905] Opinion Per Hadley, J. 

Co., 112 Iowa 668, 84 K W. 939, 52 L. R. A. 318; Brant 
V. Virginia Coal & Iron Co,, 93 U. S. 326, 23 L. Ed. 927; 
Nash V, Baker, 40 Neb. 294, 58 N. W. 706; Parlcey v. 
Ramsey, 111 Tenn. 302, 76 S. W. 812; Bennecke v. Con- 
necticut Mut. Life Ins. Co., 105 U. S. 990, 26 L. Ed. 355. 
The mere loss of a right to appeal when the judgment below 
is not erroneous, is without prejudice, and will not work an 
estoppel. Hughes v. New York Life Ins. Co., supra; Getchell 
etc. Lunu Mfg. Co. v. Employers' Liability Assur. Corp., 
117 Iowa 180, 90 K W. 616, 62 L. E. A. 617; Sioux 
Valley State Bank v. Kellogg, 81 Iowa 124, 46 N. W. 859 ; 
Brigham Young Trust Co. v. Wagener, 12 Utah 1, 40 Pac. 
764 ; McCaHhy v. Mutual Relief Ass'n, 81 Cal. 584, 22 Pac. 
933 ; Warder v. Baker, 54 Wi&. 49, 11 K W. 342 ; Frei v. 
McMurdo, 101 Wis. 423, 77 IST. W. 915 ; Smith v. Yager, 
85 Iowa 706, 50 K W. 224. 

n. R. Clise, for respondent. 

Hadley, J. — This is a suit upon an indemnity bond. The 
plaintiflF is the owner of vessels plying the waters of the Pa- 
cific Ocean. Among vessels so owned and operated, is a 
certain schooner, called the "Willis A. Holden." The de- 
fendant, for a valuable consideration, executed and delivered 
to plaintiff its certain policy of indemnity, whereby it agreed 
to indemnify the plaintiff against loss for damages on ac- 
count of bodily injuries accidentally suffered by any em- 
ployee of plaintiff while on duty on or about its vessels, 
caused by the negligence of the assured, and resulting from 
the operation of its vessels. The schooner above mentioned 
was engaged in a voyage from Xewcastle, in Xew South 
Wales, to the Pacific coast of the United States, by one 
or more ports in the territory of Hawaii, and on board 
of said vessel was a certain seaman named "Donovan," who 
was, by the captain of said schooner, regularly employed as 
second mate during said voyage. While in the performance 



302 GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 

Opinion Per Hadlet, J. [39 Wash. 

of his duties, on or about Sepitember 24, 1903, he met with 
an accident on board the schooner, whereby he suffered cer- 
tain injuries. On account of said injuries said Donovan, 
on or about October 23, 1903, in the district court of the 
United States for the district of Hawaii, caused a certain 
libel and citation to issue out of said court against said 
schooner, claiming damages in the sum of $10,000. The 
schooner was, by the marshal of said district, seized and 
detained until such time as it was released by reason of the 
fact that the master, in behalf of this plaintiff, gave bond 
in the sum of $10,000 with the United States Fidelity & 
Guaranty Company as surety. 

The complaint avers that, upon the seizure of the schooner, 
the plaintiff advised the defendant thereof, and that, at the 
finest of defendant, plaintiff procured said bond for re- 
lease, for which defendant agreed to pay ; that plaintiff sent 
to defendant copies of the libel and proceedings in said action, 
and at ita request employed attorneys to defend the libel, 
and caused an answer to be filed, denying the liability of 
this plaintiff for any damages whatsoever in the premises; 
that plaintiff took such other steps as were requested and 
advised by the defendant, the latter at all times agreeing 
to bear the expense of said defense, and to pay all chai^ges 
incurred therein ; that thereafter sudb proceedings were had 
in said action that said Donovan obtained a judgment against 
tliis plaintiff in the sum of $800; that, upon the entry of 
said judgment, the plaintiff at once advised the defendant 
thereof, and the latter instructed that an appeal should be 
taken to the proper court ; whereupon the plaintiff took the 
necessary steps and incurred the neceesary expense to perfect 
said appeal; that thereafter the defendant instructed the 
plaintiff to abandon the appeal, and then agreed with plain- 
tiff to pay the said judgment; that the plaintiff, relying 
upon said instruction and pi'omise, instructed the attorneys 
in charge of the defense in tlie action to abandon the appeal, 
and that the same was accordingly done; that thereafter 



GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 303 
July 1905] Opinion Per Hadlky, J. 

the defendant, without cause and unwarrantedly, refused to 
pay the judgment, and still so refuses; that plaintiff was 
compelled to pay the judgment^ amounting with costs to 
$881.45, and that plaintiff also necessarily incurred other 
expense in the defense of the action, including witness fees, 
attorney's fees, costs of appeal, and other costs, in the sum 
of $675.54. Judgment is demanded for the total sum of 
$1,556.99. 

The defendant answered that the said United States dis- 
trict court rendered a decision in said cause wherein it found 
that the owner of the schooner, the plaintiff herein, and 
ita agents in control thereof, were not guilty of any negli- 
gence in the operation of the vessel rendering the owner 
liable to said Donovan; but that the court further found 
that the owner failed to provide suitable medical assistance 
for said seaman after his injury, and that, for this reason 
only, it caused the said judgment to be rendered against 
the schooner and her tackle; that the obligation upon which 
the judgment was based was one growing out of the implied 
maritime contract of employment, and was not on account 
of any damages occasioned by the negligent operation of the 
vessel, which subject was alone covered by the policy of 
indemnity. The answer further avers, that all of the direc- 
tions and requests made by the defendant to the plaintiff 
with regard to the bond for releasing the schooner, and as 
to prosecuting a defense, were made solely upon the repre- 
sentations made by plaintiff to defendant that the former 
was being sued on account of damages alleged to have been 
occasioned by the negligent acts of those in charge of the 
schooner, and connected with its operation; that all direc- 
tions given with regard to taking an appeal, and making a 
settlement after judgment, were given solely by reason of 
information from the plaintiff to the foregoing effect; that, 
as soon as the defendant ascertained that the judgment was 
given solely on account of the violation by plaintiff of its 
maritime contract to furnish Donovan with suitable medical 



304 GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 

Opinion Per Hadley, J. [Zd Wash. 

attendance, it informed plaintiff that it would neither pay 
the judgment nor be in any way responsible by reason thereof; 
that, if the plaintiff had informed defendant at the time of 
the rendition of the judgment of the true nature thereof, 
it would have disclaimed any liability, and would neither 
have said nor done anything regarding an appeal, a settle- 
ment, or other disposition of the case. 

The plaintiff replied that, because of the matters alleged 
in the complaint, the defendant is estopped from setting up 
or offering in evidence any of the matters set up in the 
aflSrmative defense. It was stipulated that the cause should 
be tried before the court without a jury, and upon an agreed 
statement of facts. It was so tried, and the court made 
findings of facts and conclusions of law and entered judg- 
ment in favor of the plaintiff for the full sum demanded. 
The defendant has appealed. 

There are no exceptions to the findings of facts> and the 
errors assigned relate wholly to the court's conclusion from 
the facts that appellant is estopped to deny its liability. 
The court found that the libel filed in said district court 
was based upon an alleged claim for damages growing out 
of the negligent operation of the vessel, and also from failure 
to supply the libellant with proper surgical treatment; that 
both appellant and respondent had in their possession copies 
of the libel, and both knew that the libellant claimed dam- 
ages for negligence of operation and also for breach of the 
maritime contract; that, under the libel, being in part for 
personal injuries accidentally suffered through alleged negli- 
gence, the appellant was obligated by its policy of indemnity 
to defend the action. The facts with regard to the seizure 
of the vessel, and the employment of counsel at appellant's 
request to defend against the libel, are found substantially 
as alleged in the complaint, and as above set forth. The 
nature of the decision and judgment rendered by the admir- 
alty court are found to have been as alleged in the answer 
and set out above. The facts concerning appellant's in- 



GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 305 
July 1905] Opinion Per Hadley, J. 

stnictions to the respondent to appeal from the judgment, 
to thereafter withdraw the appeal, accompanied with the 
promise by appellant to pay the judgment, the subsequent 
refusal to pay, and the expense incident to the defense and 
appeal, are all found as alleged in the complaint and as above 
stated. It is found that the attorneys for the defense in the 
libel suit, while nominally representing this respondent, were, 
in truth and in fact, defending said libel as the attorneys and 
agents for this appellant. It is further found that the re- 
spondent has at all times acted in good faith in giving to 
appellant all information in its possession pertaining to said 
action in Hawaii, and that neither party to this action, save 
by the knowledge possessed by the attorneys in Hawaii, knew 
upon what ground alleged in the libel the said district court 
had given judgment; but that, notwithstanding this, the 
appellant instructed the respondent to abandon the appeal, 
and stated without qualification or condition that it would 
pay the judgment. 

Appellant admits that it was under the obligation to de- 
fend against the libel, as far as the same had to do with 
n^ligence in the navigation of the schooner, and that it was 
liable for any damages that might be recovered as the con- 
sequence of such neglect It admits its liability for at least 
a portion of the expense of making the defense, but argues 
that it is not liable for the whole thereof, for the reason 
that, under its policy of indemnity, it was not obligated to 
pay damages that might be recovered under one ground al- 
leged in the libel, and which the defense necessarily re- 
sisted. The defense was, however, necessary for appellant's 
own protection. Its contract of indemnity required that it 
should defend the action at its own expense, and the court 
found that the amount was properly and necessarily expended 
in the defense and at appellant's request The defense may 
have incidentally included a ground that appellant was not 
obliged to urge, but the record fails to disclose that the 

20-80 WASH. 



306 GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 

Opinion Per Hadley, J. [39 Wash. 

amount expended wfts not necessary to establish the defense 
which appellant was bound to make. Without considering 
at this time the items of expense incurred after judgment 
by way of appeal and otherwise, we think appellant is liable 
under its contract of indemnity for the riBmaining items^ 
they having been incurred in the defense of the action. 

Referring now to the principal contention in the case 
which concerns appellant's liability for the amount of the 
Hawaiian judgment, it appears that the parties themselves 
have stipulated that both acted in good faith, by which it 
is understood that neither one attempted to deceive the other. 
It is also established that respondent withdrew its appeal 
and paid the judgment at appellant's request, relying upon 
the promise of the latter to reimburse it, and that otherwise 
the appeal would have been prosecuted. Appellant contends 
that it acted in the premises without actual knowledge of 
the true nature of the judgment, and under the belief that 
it was such a judgment as would establish appellant's lia- 
bility to respondent. It argues that all the information it 
possessed came to it from respondent, and that although the 
latter did not wilfully deceive it, yet inasmudi as respondent 
was without knowledge of the true nature of the judgment, 
it failed to advise appellant thereof, but that it was the duty 
of the former to so advise the latter. It is therefore estab- 
lished that respondent made no attempt to mislead appellant. 

It is also a fact that appellant was obligated to defend the 
action at its own expense, and that it did do so. It therefore 
became its duty to know the result of the defense it had 
prosecuted. It had a copy of the libel, and knew that a 
judgment was sought for breadi of the maritime contract 
as well as upon the other ground. We have also seen that 
the court specifically found that the attorneys who conducted 
the defense were the attorneys and agents of appellant. The 
knowledge of the attorneys, therefore, became the knowledge 
of appellant, and the latter must be boimd by it, especially 
in the absence of fraud or attempt on respondent's part to 



« 



GLOBE NAV. CO. ▼. MARYLAND CASUALTY CO. 307 
July 1905] Opinion Per Hadley, J. 

mislead. The correspondence concerning the matter was con- 
ducted by cable and mail between Honolulu and Seattle, and 
between agents of the respective parties in Seattle, together 
with communications sent from Seattle to appellant's home 
office in Baltimore. Ifo reason appears why appellant did 
not seek information as to the true nature of the judgment 
through the same medium of communication, which it is 
manifest it might have done, either from Seattle or Balti- 
mora Furthermore, it does not appear that respondent 
knew, at the time it received instructions to withdraw the 
appeal, that appellant had not availed itself of such means 
of full information. The instruction was unconditional that 
the appeal should be abandoned, accompanied with an un- 
conditional promise to pay the judgment. Under all the 
circumstances it would seem that respondent was justified 
in assuming that appellant had fully advised itself as to 
its liability, and that being satisfied it preferred to pay the 
judgment rather than continue the litigation. 

Appellant argues that, since it acted imder an honest mis- 
take, without full kno^wledge of the facts, there can there- 
fore be no estoppel. Many authorities are cited to the effect 
that estoppel must be based upon full knowledge of the facta 
on the part of the party to be estopped. What vre have 
said indicates our view that, under all the circumstances, 
appellant was legally chargeable with knowledge of the true 
facts. It is also an element of the principle urged by ap- 
pellant that ignorance of the facts must not result from 
gross OT inexcusable negligence. Appellant cites and quotes 
the following: 

"It may be stated, as a general rule, that the representa- 
tion or concealment relied on to sustain an estoppel must 
have been made with full knowledge of the facts by the party 
to be estopped, unless his ignorance was the result of gross 
negligence or otherwise involves gross culpability. . . ." 
11 Am. & Eng. Ency. Law (2d ed.), 433. 

Under the above stated rule, and in view of the circum- 



808 OLOBE NAV. CO. V. MARYLAND CASUALTY CO. 

Opinion Per Hadlet, J. [39 Wash. 

stances, it is manifest that appellant was under the reason- 
able obligation to ascertain the facts, and that it could reason- 
ably have learned them from the attorneys who conducted 
the very defense it had directed. When it failed to possess 
itself of the knowledge held by its own attorneys, and yet 
assumed to instruct respondent, knowing that the latter re- 
lied thereon, it was certainly neglectful in more than an 
ordinary degree. 

" 'Negligence' has been defined to be *the omission to do 
something which a reasonable man, guided by those consid- 
erations which ordinarily regulate the conduct of human 
affairs, would do, or doing something which a prudent and 
reasonable man would not do.' It must be determined in all 
cases by reference to the situation and knowledge of the 
parties and all the attendant circumstances. What would 
be extreme care under one condition of knowledge, and one 
state of circumstances, would be gross negligence with dif- 
ferent knowledge and in changed circumstances. The law 
is reasonable in its judgments in this respect. It does not 
charge culpable negligence upon any one who takes the usual 
precautions against accident, which careful and prudent men 
are accustomed to take under similar circumstances." The 
Nitro-Glycerine Case, 15 Wall. 524. 

It is said that appellant had no intention to deceive or 
mislead respondent. But such an intent is not a necessary 
attendant of estoppel. The conduct creating the estoppel 
may be without such intention, if it is such as to induce a 
reasonable man to act upon it. 11 Am. & Eng. Ency. Law 
(2d ed.), 431. Decisions from many states are cited by the 
textwriter in support of the above proposition. 

"It is not necessary to an equitable estoppel that the party 
should design to mislead. It is enough that tJie act was cal- 
culated to mislead and actually did mislead the defendants 
while acting in good faith, and with reasonable care and 
diligence, and that thereby they might be placed in a posi- 
tion which would compel them to pay a demand which they 
had every reason to expect was cancelled and discharged." 
Blair v. Wait, 69 N. Y. 113. 



GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 309 
July 1905] Opinion Per Hadlet, J. 

See, also, Moore v. Brownfield, 10 Wash. 439, 39 Pac 118 ; 
Continental Nat. Bank v. National Bank, 50 N. T. 575; 
Wallerich v. Smith, 97 Iowa 308, 66 K W. 184 ; Patterson 
V. Hitchcock, 3 Colo. 533; Sullivan v. Colby, 71 Fed. 460; 
Morgan v. Railroad Co., 96 U. S. 716; Swain v. Seamens, 
9 Wall. 254. 

It is further argued that the parties stood upon equal footr 
ing^ that they possessed equal knowledge as to the facts, and 
that in such case estoppel does not arise. It is true respondent 
hurriedly employed attorneys in Honolulu to protect the ves- 
sel against the libel soon after it was seized. But appellant 
directed that the same attorneys should be employed in its 
behalf to conduct the defense^ the burden of which it there- 
after assumed. From that time, as the court found, while 
the attorneys nominally represented respondent, yet they actu? 
ally represented appellant Under such circumstances wc 
think it should not be said that the parties were equallj 
chargeable with knowledge. The duty of making the defens* 
was cast upon appellant. It undertook the defense througii 
attorneys it deliberately selected. It therefore became it^ 
duty to be advised as to the full result. Respondent waa 
not under the immediate duty to know the result as to ap- 
pellant's liability, since the latter by its contract of indem 
nity had agreed to prosecute the defense. If the result 
established that appellant was not liable, then it should havQ 
been careful to so inform respondent before it permitted the 
latter to act under a misapprehension. 

It is insisted that estoppel does not arise unless it is shown* 
that respondent has been actually prejudiced, and that iV 
does not appear that the judgment of the Hawaiian court 
was wrong, and would have been reversed on appeal. That 
18 a matter this court cannot determine. This is not the 
reviewing court, and the full record of the trial is not here, 
80 that we may even properly form an opinion as to whether 
there was reversible error. Respondent offers in this coon 



310 GLOBE NAV. CO. v. MARYLAND CASUALTY CO. 

Opinion Per Hadlet, J. [39 Wash. 

both argument and authority in support of its contention 
that it would have been able to secure a reversal of the judg- 
ment, but as that question is not for us, we have not examined 
it. It is said by appellant that the presumption must be 
that the judgment was correct^ and that respondent has not 
even alleged to the contrary in its complaint in this action. 
It may be true that such a presumption prevails as a general 
legal proposition, but the same may be said as to any judg- 
ment from which an appeal has been taken, and yet the 
right of appeal is a valuable rights and when taken is, in 
itself, a direct attack upon the judgment as having be«i 
erroneously entered. It is fully shown by this complaint that 
the initiatory steps for an appeal were duly taken. A statu- 
tory right of appeal is an absolute one and does not depend 
on the merits of the cause below. 2 Ency. Plead. & Prac, 21 ; 
McCreary v. Rogers, 35 Ark. 298 ; Hewlett v, Shaw, 9 Mich. 
345 ; Ware, Register v. McDonald^ 62 Ala. 81 ; State ex rel. 
Boutte etc. v. Judge etc, 28 La. Ann. 547. 

The respondent therefore had the absolute right to have 
the cause reviewed on appeal. It was induced to abandon 
that right by the conduct of appellant, and the latter should 
not now be heard to say that respondent was not prejudiced 
because of mere absence of a positive demonstration that it 
would have secured a reversal on appeal. No one except 
the Infinite Mind can determine that question to a certainty 
at this time. Not even the court that would have reviewed 
the case can now know whether in its view reversible error 
would have appeared or not. But the certain fact does 
appear that, by reason of appellant's conduct, respondent did 
not have the benefit of the wisdom and experience of the 
learned judges of the appellate tribunal, the United States 
circuit court of appeals. We therefore think appellant is 
now estopped to deny its liability to pay as it promised, 
which included both the amount of the judgment and the 
subsequently incurred costs. Its liability upon the first branch 



BUPHRAT V. MORRISON. 811 

July 1905] Opinion Per Rudkin, J. 

of the case discussed, viz., for the costs of the former de- 
iensfiy having been determined, the judgment is in all things 
aflSrmed. 

Mount, C. J., Eudkin, Fullebton, and Cbow, JJ., 
concur. 

Boot, J., being disqualified, took no part 



(No. 66S8. Decided July 24, 1906.) 

OussiB EuPHEAT, Respondent, v. Edith Mobbison, 

Appellant} 

OhJlTTEL MOBTOAOBS — FOBECLOSUBE — RxCEiyEBS — APPOINTMEirT — 

BvmENCB — Sufficiency of Showing. In an action for the foreclosure 
of a chattel mortgage upon furniture. Including a leasehold Interest 
In a hotel, a receiver pendente lite Is authorized by statute, and Is 
properly granted, where It appears that the security Is Inadequate, 
the mortgagor Insolvent, and the leasehold In danger of forfeiture 
through the mortgagor's refusal to pay the rent, and where the 
mortgagor refuses to apply rents received by him on the mortgage 
debt, admits that there Is no defense on the merits, and manifests a 
disposition to delay the proceedings. 

Appeal from an order of the superior court for King 
county, Bell, J., entered September 14^ 1904, appointing 
a receiver pendente lite upon the application of the plaintiff, 
after a hearing upon affidavits, in an action to foredose a 
chattel mortgage. Affirmed. 

Byers & Byers, for appellant. 
Harrison Bostwich, for respondent 

RuDKiN, J. — This is an appeal from an order appointing 
a receiver vendente lite, in an action to foreclose a chattel 
mortgage. On the 4th day of March, 1904, the appellant 
mortgaged to the respondent all the furniture and house- 
hold effects contained on the third and fourth floors of the 

iReported in 81 Pac. 696. 



812 BUPHRAT V. MORRISON. 

Opinion Per Rudkin, J. [39 Wash. 

hotel Western, and also the leasehold interest in the prem- 
ises occupied by the mortgagor, to secuiie the payment of 
$1,230, in monthly installments of $100 each, payable on 
the 4th day of each and every month, commencing April 
4, 1904, with interest at the rate of twelve per cent per 
annum. The mortgage contained a provision that the whole 
sum should become due and payable on default in the pay- 
ment of any installment; and the installments due on the 
4th day of April, May, June, July, and August were due 
and unpaid at the time of the commencement of this action. 
There was a prior mortgage on the same property in favor 
of one George O'Eeilley, to secure the rental on the third 
and fourth floors of said hotel Western, at the rate of $250 
per month, and the rent for the months of June, July, and 
August^ amounting to $750, was due and unpaid at the time 
of the commencement of this action. The respondent, be- 
fore commencing this action, attempted to foreclose her mort- 
gage by notice without action, under the statute^ but the 
proceedings were removed into the superior court. It fur- 
ther appears that O'Reilley has commenced proceedings to 
recover possession of the third and fourth floors of the hotel 
Western, the leasehold interest in which was covered by the 
mortgage. The complaint further avers that the appellant 
is intentionally and purposely avoiding the payment of the 
respondent's mortgage, and of the rent accumulating on the 
said rooms, and is converting the money which she receives 
in the conduct and operation of said rooms to her own use, 
thereby cheating and defrauding respondent out of the money 
due upon said notes and mortgage. 

In opposition to the appointment of a receiver, the ap- 
pellant cites and relies on Norfor v. Bushy, 19 Wash. 450, 
53 Pac. 715, and Balfour-Guthrie Inv. Co. v. Oeiger, 20 
Wash. 579, 56 Pac. 370. It was held in these cases that 
the act of 1854, whidi provided that a receiver might be 
appointed in an action by a mortgagee for the foreclosure of 
a mortgage and the sale of the mortgaged property, when.- 



EUPHRAT V. MORRISON. 313 

July 1906] Opinion Per Rudkin, J. 

ever such property was insufficient to discharge the debt^ to 
secure the application of the rents and profits accruing be- 
fore sale could be had, was repealed by implication by later 
statutes, which provide that a mortgage shall not be deemed 
a conveyance so as to enable the owner of the mortgage to 
recover possession of the property without foreclosure and 
sale, and giving to the mortgagor the right of possession until 
after foreclosure and sale. 

We do not understand that this application is based on 
that statute. Provisions of the statute which are not re- 
pealed are to the effect that a receiver may be appointed in 
all actions, where it is shown that the property, fund, or 
rents and profits in controversy are in danger of being lost, 
removed, or materially injured ; in an action by a mortgagee 
for the foreclosure of a mortgage and the sale of the mort- 
gaged property, when it appears that such property is in 
danger of being lost, removed, or materially injured; and 
in such other cases as may be provided for by law, or 
when, in the discretion of the court, it may be necessary 
to secure ample justice to the parties. 

From the showing made in support of the application for 
the appointment of a receiver, it satisfactorily appears that 
the mortgage security is wholly inadequate, that the mort- 
gagor, who is personally liable for the mortgage debt, is 
hopelessly insolvent, and that the mortgage security is im- 
paired, or endangered by the forfeiture of the leasehold 
interest included within the mortgage, by reason of the 
wrongful refusal of the mortgagor to pay the rent In addi- 
tion to this; while the appellant denies each and every alle- 
gation of the complaint in her verified answer, she admits, 
in her affidavit filed in opposition to the appointment of a 
receiver, the execution of the notes and mortgage in suit 
and the default in the payments. It is therefore apparent 
that she has no defense to the action on the merits, and 
the entire record manifests a disposition on her part to de- 
lay the foreclosure as long as possible, by dilatory proceed- 



814 NOTES V. DOUOLA.S. 

Statement of Case. [39 Wash. 

ings, in order that she may appropriate to her own use thB 
proceeds of the business in which the mortgaged property 
is nsedy regardless of the effect npon the mortgagee or the 
mortgage security. The foregoing facts are a suflScient war^ 
rant for the appointment of a receiver, under all the authori- 
ties. High, Receivers, § 666; 23 Am. & Eng. Ency. Law 
(2d ed.), 1027, and cases cited. 
The order appointing the receiver is therefore affirmed. 

Mount, C. J., Cbow, Ftillebton, Hadlet, and Boot^ 
JJ., concur. 



(No. 6600. Decided July 24, 1906.) 

Russell T. Notes et ah. Respondents, v. James A. Douglas, 

Appellant} 

ADVIBBSE POSSSSSION — BOUNDABIEB — ^MISTAKE — CLAIM OF RlOHT. 

The possession of land, inclosed through a mistake as to the location 
of the boundary line. Is shown not to have been adverse or under 
claim of right, where the owner of city lots, after eight years posses- 
sion, had the lines surveyed before building and took possession 
of, improved and claimed his own lots as located by such survey. 

Same — ^Abandonment of Possession. An abandonment of posses- 
sion is shown, where the owner of city lots, after a survey of the 
boundaries, removed all improvements from a strip of the adjoining 
lots that he had inclosed by mistake, and took possession of his own 
lots according to the survey and, for two years before the statute 
had run, the strip in question remained uninclosed and with improve- 
ments too insignificant to challenge attention to an adverse claim. 

Appeal from a judgment of the superior court for King 
county. Bell, J., entered December 22, 1904, upon findings 
in favor of the plaintiffs, after a trial on the merits before 
the court without a jury, in an action to quiet title. Ee- 
versed. 

Douglas, Lane & Douglas and Richard 8axe Jones, for 
appellant 

Benson, Hall & Higgins, for respondents. 
iReported in 81 Pac. 724. 



NOTES V. DOUGLAS. 816 

July 1905] Opinion Per Rxtdkin, J. 

RuDKiN, J. — On the 17th day of November, 1891, the 
plaintiffs acquired by purchase lots six and seven, of block 
one, of Wirth's addition to the city of Seattle. Soon after 
their purchase, they located the lots upon the ground, took 
possession, cleared and fenced them, and planted them to 
fruit trees, grass and shrubbery. They continued thus to 
occupy and use the premises until some time in the year 
1900. In the latter year the plaintiffs, contemplating the 
construction of a new house, employed one George F. Cot- 
terill, a civil engineer, to make a survey of the lots and 
mark the boundaries. By this survey the lots were located 
twenty-one feet east, and three feet south, of the original 
location — ^that is, the original location overlapped twenty- 
one feet on lots four and five to the west, and three feet on 
lot eight to the north. The plaintiffs thereupon graded lota 
six and seven and constructed their house thereon, with ref- 
erence to the Cotterill survey, and removed the trees and 
shrubs and all improvements, except the grass, from the 
twenty-one foot strip formerly occupied. Some time in the 
year 1902 a small chicken house and yard, which had there- 
tofore been maintained on lot 8, was removed to the overlap 
on lot 4, and extended about seven feet beyond the overlap^ 

This action was brought by the plaintiffs against the de- 
fendant, as record owner of lots four and five, to quiet title 
to the twenty-one foot strip above described, the plaintiffs 
claiming lots six and seven by virtue of their deed, and 
the twenty-one foot strip across the east end of lots four 
and five by adverse possession. The plaintiffs had judg- 
ment in accordance with the prayer of their complaint, and 
the defendant appeals. 

The judgment appealed from cannot be sustained, for 
two reasons : First, because no adverse possession was shown ; 
and second; because there was a substantial abandonment 
of the premises in controversy within the statutory period. 
Taking into consideration the conduct of the respondents, 
and all the surrounding circumstances, it cannot be said 



816 NOTES V. DOUGLAa 

Opinion Per Rudkin, J. [39 Wash. 

that their possession was adverse. They only had claim or 
color of title to the two lots; they only paid taxes on the 
two lots, so far as the record discloses ; as soon as they con- 
templated permanent improvements^ they took the precau- 
tion to have an accurate survey made by a competent sur- 
veyor ; they located all their improvements within the limits 
of the lots as shown by this survey, ttus showing conclu- 
sively that they at all times claimed title to lots six and seven 
according to the true boundaries when ascertained. Under 
what pretense, then, can they claim title to property lying 
without the boundaries of the two lots? We think these 
facts bring the case within the decisions of this court in 
SuJcsdorf V. Humphrey, 36 Wash. 1, 77 Pac. 1071, and 
Wilcox V. Smith, 38 Wash. 585, 80 Pac. 803, where the 
rule applicable in such cases is thus stated: 

"If one by mistake inclose the land of another, and claim 
it as his own, his actual possession will work a disseizure^ 
but if, ignorant of the boundary line, he makes a mistake 
in laying his fence, making no claim, however, to the lands 
up to the fence, but only to the true line as it may be sub- 
sequently ascertained, and it turns out that he has inclosed 
the lands of the adjoining proprietor, his possession of the 
land is not adverse." 

Furthermore, we think the testimony clearly shows a sub- 
stantial abandonment of the strip of land in controversy 
within the statutory period of ten years. As soon as the 
mistake in the boundary was discovered, the respondents 
immediately removed all their improvements and everything 
removable from the disputed tract. Some two years later, 
they moved a small chicken house and yard from lot 8, not 
owned by them, and located the same on this tract, but for 
at least two years before the statute had run its course, this 
strip was uninclosed and the improvements thereon were in- 
significant in character and value, and wholly insuflScient 
in law to challenge the attention of the owner or a purchaser 
to the fact that the premises were held or claimed adversely. 



NOTES V. DOUGLAS. 317 

July 1906] Opinion Per Rudkin, J. 

As said by this court in Blake v. Shriver, 27 Wash. 693, 
68 Pac. 330. 

"The whole testimony convinces us that the claimant, 
when he went there, simply squatted upon the land for 
present convenience; that he had no color of title or claim 
of right to it in any sense whatever; that he did not even 
intend or think of obtaining title to it, by the statute of 
limitations or in any other way, at the time he settled upon 
it, or for many years thereafter; that the occupation was 
purely permissive, by reason of the circumstances which 
we have above portrayed ; and that it was the intention upon 
the part of these claimants to reap the benefit to which they 
are not entitled by now claiming an adverse possession for 
ten years. It is not such strolling, straggling occupancy as 
is shown by the testimony in this case that constitutes a 
notice of adverse possession. It is the history of most cities 
of this country that where lands are lying idle, either from 
being held by non-residents, or from being tied up in lengthy 
litigation, that a certain class of people squat upon them 
and build for present use what are called shacks or shanties, 
and are frequently not disturbed for many years. And this 
was exactly the condition of affairs in Spokane in reference 
to these lands in dispute. It is not conducive to public 
morals to allow a stranger to take possession of property 
which is in dispute between two citizens, and claim that it 
is his because the owner has a controversy over it with some 
one else. Even if, under such circumstances, adverse pos- 
session could ripen into title hy reason of large improve- 
ments which would necessarily challenge the attention of 
the owner as being inconsistent with any other theory than 
that of ownership on the part of the builder, no such notice 
is given in this case, where the testimony shows, as do the 
findings of the court, that the improvements were insignifi- 
cant in character and value, and were only necessary to the 
occupancy of these lots as a place of residence/* 

For the foregoing reasons the judgment is reversed, with 
directions to enter a decree quieting the title of the appellant 
to the disputed tract as prayed in his answer. 

Mount, C. J., Cbow, Fulleeton, Hadley, and Eoot, 
J J., concur. 



318 LAKE V. CHURCHILL. 

Opinion Per Curiam. [39 Wash. 

(No. 6642. Decided July 27p 1906.) 

CiiABLEs Lake et aL, Appellants, v. E. P. Chuechelli et aL, 

Respondents} 

Vendob and Purchases — Fraud — Rescission by Vendee — ^Neqlbct 
TO Investigate. There can be no rescission for false representations 
of the vendor in representing the length of the lots, that the premiaefi 
were unincumbered, and that an abstract thereof was brought down 
to date, where the abstract submitted to the vendees showed on its 
face that it was about a year from date, and the vendees visited the 
property and had an opportunity to examine the title, the records 
showing a mortgage subject to a contract assigned to the vendees. 

Appeal from a judgment of the superior court for King 
county, Richardson, J.^ entered October 8, 1904, dismissing 
on the merits, an action for rescission on the ground of fraud, 
after a trial on the merits before the court without a juiy. 
Affirmed. 

J. E. McGrew, for appellants. 

TT. D. Lambuth and Smith & Cole, for respondents. 

Peb CuKiAM. — This action was brought in equity to re- 
scind the sale of two city lots, on the ground of fraud and 
misrepresentation. Appellants claimed that they purchased 
the lots upon the representation that they were one hundred 
and twenty-five feet in length, while in fact one of them 
was only one hundred and eight, and the other one hundred 
and twelve, feet long; that the lots were represented to be 
free from incumbrances, while in truth they were incum- 
bered by a mortgage of $1,500, and taxes amounting to 
$28.80; that the abstract of title which was shown to ap- 
pellants was represented to be brought down to March 5, 
1904, while in fact it was brought down only to April 22, 
1903, at which time the title was clear. At the trial it was 
shown, by the evidence of the plaintiffs, that they visited the 
property before the sale and examined it; that the abstract 

1 Reported in 81 Pac. 849. 



VULCAN IRON WORKS v. BURRE2LL CONSTR. CO. 319 
July 1905] Statement of Case. 

of title showed upon its face that it was brought down to 
April 22, 1903 ; that they examined it, and had an opportu- 
nity to examine the condition of the title. The record shows 
that the mortgage of $1,500 was subject to a contract which 
was assigned to appellants. The court thereupon dismissed 
the action. Plaintiffs appeal. 

This case falls squarely within the rule applied to the case 
of Hulei V. Achey, ante, p. 91, 80 Pac. 1105, and must be 
controlled thereby. The judgment is therefore aflSrmed. 



(No. 6029. Decided July 27, 1906.) 

The Vulcan Iron Works, Respondent, v. The Burrell 
Construction Company, Appellant} 

PUCADINGS — VaEIANCE — CONTRACTS — PABTIES — ADOPTION OP CON- 

TBACT Made bt Another Party. In an action upon a contract for the 
purchase price of castings, alleged to have been sold to the defendant, 
it is not a variance that the proof showed a contract originally 
entered into with defendant's president, who afterwards directed the 
account to be changed, where the goods were consigned to the de- 
fendant and part of the correspondence was carried on in its name; 
since the antecedent negotiations were unessential, and a sale to the 
defendant was shown. 

Pleading — ^Amendment — Issues Raised by Denials — Contracts — 
Parties. In an action on contract, an amendment .to an answer to 
show that the defendant was not a party to the contract is not neces- 
sary where the issue was raised by denials. 

Continuance — Surprise — Refusal op Nonsuit — Pleadings — 
Amendment. The denial of a nonsuit is not such surprise as war- 
rants a continuance or the allowance of amendment to the pleadings. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered January 3, 1905, upon findings in 
favor of the plaintiff, in an action on contract, ^^ifter a trial 
before the court without a jury. Affirmed. 

Graves, Palmer, Brown & Murphy, for appellant 
Benton Embree, for respondent. 
iReported in 81 Pac. 836. 



820 VUIXIAN IRON WORKS v. BURRELL CONSTR. CO. 

Opinion Per Ritokin, J. [39 Wash. 

RuDKiN, J. — Some time prior to the 23d day of July, 
1903, the plaintiff in this action offered to furnish certain 
ironwork, with shafting and other appliances, for the con- 
struction of a drawbridge, at the agreed price of $802, and 
on the above date this offer was accepted in ^vriting, the ac- 
ceptance being signed by Alfred W. Burrell. It was later 
discovered that certain of the castings should be made of steel 
instead of iron, and that the same could not be furnished at 
the price agreed upon. Thereupon, on the 2d day of Novem- 
ber, 1908, it was orally agreed that the plaintiff should r^ 
ceive, in addition to the $802 theretofore agreed upon, the 
difference in price between the cost of iron and steel, which 
should not, however, exceed four and three-fourths centa per 
pound, and on said date this offer was accepted in writing. 
The acceptance was on a letter head of the Burrell Construc- 
tion Company, but was signed by Alfred W. Burrell. The 
plaintiff contends that this contract was entered into for and 
on behalf of the Burrell Construction Company, throu^ 
Alfred W. Burrell, its president and manager. The defend- 
ant, on the other hand, claims that it was the individual con- 
tract of Alfred W. Burrell. On November 5, 1903, or three 
days after the acceptance of the modified offer, and before 
anything was done under it, the plaintiff received the follow*- 
ing communication from A. W. Burrell : 

'^Seattle, Wash., Nov. 6, 1908, 

"Vulcan Iron Works, Seattle, Wash. 

"Gentlemen : Please change the account of A. W. Burrell 
to Burrell Construction Company, and hereafter keep ac- 
counts and render bills in that name. Tours very truly, 
A. W. Burrell." 

During the progress of the work, bills seem to have been 
rendered to A. W. Burrell and to the Burrell Construction 
Company. The goods were consigned to the Burrell Con- 
struction Company, at San Francisco, and some communica- 
tions to the plaintiff in regard to the goods were signed by 
A. W. Burrell, and others by the Burrell Construction Com- 



VULCAN IRON WORKS v. BURRELL CONSTR. CO. 321 
July 1905] Opinion Per Rudkin,* J. 

pany. I^o question seems to have arisen as to the parties to 
the contract prior to the commencement of this action. 

This action was brought against the Burrell Construction 
Company, to recover the contract price and the price of cer- 
tain extras. The case was tried before the court without a 
jury. The court found that the contract entered into on the 
2d day of November, 1903, was between the plaintiff and the 
Burrell Construction Company, and that said contract was 
fully performed by the plaintiff, and entered judgment for 
the contract price, together vnth the price of certain extrasw 
■The defendant appeals from that judgment. 

As stated above, the court found that the original con- 
tract was between the respondent and the Burrell Construcr 
tion Company, appellant Whether the court was of opinion 
that the original contract was entered into by A. W. Burrell 
on behaK of the Burrell Construction Company, or that the 
contract became the obligation of the Burrell Construction 
Company by reason of the order of November 5, above re- 
ferred to, and the subsequent conduct of the parties, does not 
appear. However we might view the contract, considered 
only with reference to what transpired prior to the 2d day 
of November, 1903, the evidence sufficiently shows that the 
contract became the obligation of the Burrell Construction 
Company by reference to what took place after that date. If 
the court below was correct in its finding that the contract 
of November 2, 1903, was the contract of the Burrell Con- 
struction Company, there is no foundation for the conten- 
tion of appellant that there is a variance between the com- 
plaint and the proof offered to sustain it. 

The appellant contends, however, that the proof shows^ at 
meet, that the contract between the respondent and Alfred W. 
Burrell was afterwards adopted by the respondent and the 
Burrell Construction Company, and that therefore such var- 
iance does exist. Undoubtedly, an allegation that a con- 
tract was entered into between a plaintiff and a defendant is 

21—89 WASH. 



322 VULCAN IRON WORKS v. BURRBLL CONSTR. CO. 

Opinion Per Rudkin, J. [39 Wash. 

not sustained by proof that tbe contract was entered into be- 
tween the defendant and a third person and thereafter as- 
signed to the plaintiff. Such were the cases of Norris Safe 
& Loch Co. V. Clark, 28 Wash. 268, 68 Pac. 718, 70 Pac 
129; Dennis v. Spencer, 45 Minn. 250, 47 N. W. 795; 
Thompson v. Raihhun, 18 Ore. 202, 22 Pac. 837, and others 
cited by the appellant. We do not think that these cases are 
in point here. This was, in substance and effect, an action 
to recover the purchase price of goods sold and delivered. 
The court was justified in its conclusion that the goods were 
sold by the respondent to the appellant. It only became 
necessary to refer to the prior contract to fix the amount of 
the purchase price. There was no assignment of the oonr 
tract from Alfred W. Burrell to tie Burrell Construction 
Company. The most that can be claimed is that the respond- 
ent and the Burrell Construction Company adopted, as their 
own, a contract theretofore entered into between the respond- 
ent and Alfred W. Burrell. We see no reason why the re- 
spondent should have set forth in its complaint the ante- 
cedent negotiations which led up to the adoption of this con- 
tract. If there was a variance at all, which we do not con- 
cede, the variance was immaterial, not prejudicial, and should 
therefore be disregarded. 

The appellant further insists that it should have been al- 
lowed to amend its answer. The first offer to amend was 
for the purpose of showing that the Burrell Construction 
Company was not a party to the contract in suit, and had no 
interest therein. This issue was already presented by the 
denials in the answer, and an amendment for that purpose 
was neitlier necessary nor proper. Again, at the close of the 
respondent's case, an application was made for a continuance, 
on the ground that Mr. Burrell was a commissioner from the 
state of California to the St. Louis Fair, and it was inoim- 
bent on him to leave Seattle that night. Coupled with this 
was an application to amend the answer, setting up counter- 
claims aggregating the sum of $1,641, arising out of the 



STRATTON v. NICHOLS LUMBER CO. 323 

July 1905] Syllabus. 

failure of respondent to comply with its contract This ap- 
plication was not based upon the ground of surprise, but, in 
the language of counsel, "under the views your honor has 
taken of a nonsuit" The surprise which follows a ruling 
of the court denying a motion for nonsuit is not such sur- 
prise as warrants, or requires, the granting of a continuance, 
or the allowance of an amendment to the pleadings. Parties 
are ordinarily bound to anticipate the ruling of the court 
on motions for nonsuit, especially where the ruling is in ac- 
cordance with the law. There was no material variance bo- 
tween the allegations of the complaint and the proof offered 
in their support, there was no error in denying the motion 
for a continuance, or the application to amend the answer, 
and, inasmuch as. these are the only errors assigned, the judg- 
ment must be affirmed, and it is so ordered. 

Mount, C. J., Fullerton, Hadley, and Ckow, JJ., con- 
cur. 

KooT, J., having been of counsel, took no part. 



(No. 5348. Decided July 27, 1906.) 

Gebtkude Stkatton et aL, Respondents, v. C H. Nichols 
Lumber Company et al,. Appellants} 

Master and Servant — Negligence — Indemnity — Pact That De- 
fendant Carries Accident Insurance — Trial — Conduct of At- 
torney. It is reversible error for counsel to make statements and ask 
questions in the presence of the jury from which it would be inferred 
that the defendant in a personal injury case carried casualty insur- 
ance, and to make an offer of proof that a witness was an attorney 
for the casualty company which Insured the defendant. 

Same — Conduct op Attorney — Statements Outside of Evidence. 
It is prejudicial error for counsel, during the examination of wit- 
nesses, to continually and notwithstanding repeated objections, inter- 
polate statements of fact to such an extent that the jury might con- 
fuse the same with the evidence of the witnesses. 

1 Reported in 81 Pac. 831. 



/JO M 



324 STRATTON v. NICHOLS LUMBER CO. 

Citations of Counsel. [39 Wash. 

Master and Sebtant — ^Nbglioence — ^Proximate Cause — Coxjeo- 
TUBE — Lnjuby From Set Screw. Where a laborer in a mill is killed 
by reason of coming in contact with a set screw upon a revolving 
shaft, while executing an order to remove and tie back a belt from 
a pulley, and no one saw the accident or knew how he happened to 
come in contact with the set screw, a verdict for the plaintiff must 
be set aside; since no explanation of the accident can be made except 
by speculation, surmise, or guess. 

Same. It cannot be argued that it was necessary for him to stand 
upon the rack in order to reach and remove the belt which was tight, 
when it appears that the belt was loosened and already removed, 
and could be reached from below, and was tied on one side before 
the accident. 

Same — Two Methods, One Safe — Contrirutohy Negligence. 
Where a laborer in a mill came in contact with a set screw upon a 
revolving shaft, while executing an order to remove a belt from a 
pulley and tie it back, by reason of standing on a nearby rack, and 
it appears that he might have executed the order without coming 
near the shaft, by standing upon benches below the belt, which 
method was i)erfectly safe, he is guilty of contributory negligence 
precluding a recovery. 

Same — Neguoence of Foreman in Starting Mnx — Warning. 
Negligence cannot be predicated on the act of a foreman in starting 
a mill while an employee was in the act of removing a belt from a 
pulley, where it appears that a signal for the starting was given and 
the mill was running two or three minutes before the servant was 
injured, who therefore had ample notice, and where the belt could 
have been safely removed while the mill was in motion. 

Appeal from a judgment of the superior court for King 
county, Albertson, J., entered April 26, 1904, upon the ver- 
dict of a jury rendered in favor of the plaintiffs, in an action 
for the death of a servant caught by a set screw in a revolving 
shaft. Reversed. 

Root, Palmer & Brown and Douglas, Lame & Douglas, for 
appellants, contended, among other things, that a set screw 
eight or nine feet above the floor is "protected" as that term 
is commonly used. Glassheim v. New York Economical 
Print Co., ;U X. Y. Supp. 69 ; Glens Falls Portland Cement 
Co. V. Travelers' Ins. Co., 162 N. Y. 399, 56 N. E. 897; 
Powalske v. Cream City Brick Co., 110 Wis. 461, 86 N. W. 



STRATTON v. NICHOLS LUMBER CO. 325 

July 1905] Citations of Counsel. 

153 ; Groff v. Dvluth Imperial MUl Co., 58 Minn. 333, 59 
K W. 1049 ; Byrne v. Nye & Wait Carpet Co., 61 K Y. 
Supp. 741 ; WUliams v. Wagner Co., 110 Wis. 456, 86 K W. 
157. There was no evidence or information as to how the 
accident happened. Armstrong v. Cosmopolis, 32 Wash. 110, 
72 Pac. 1038 ; Hansen v. Seattle Lumber Co., 31 Wash. 604, 
72 Pac. 457 ; Reidhead v. Skagit County, 33 Wash. 174, 73 
Pac. 1118. The plaintiff assumed the risk of injury from a 
set screw. Ford v. Mt. Tom Sulphite Pulp Co., 172 Mass. 
644, 52 N. E. 1065, 48 L. R. A. 96 ; Kennedy v. Merrir 
mack Paving Co., 185 Mass. 442, 70 N. E. 437 ; Demers v. 
Marshall, 172 Mass. 548, 52 N. E. 1066 ; Wabash Paper Co. 
V. Webb, 146 Ind. 303, 45 N. E. 474; Donahue v. Washlum 
£ Moen Mfg. Co., 169 Mass. 574, 48 N. E. 842 ; Goodridge 
V. Washington Mills Co., 160 Mass. 234, 35 K E. 484; 
Schroeder v. Michigan Car Co., 56 Mich. 132, 22 :N. W. 220 ; 
Hale V. Cheney, 159 Mass. 268, 34 N. E. 255 ; Knisley v. 
Pratt, 148 N. Y. 372^ 42 N. E. 986, 32 L. K. A. 367. The 
improper conduct of counsel and statements outside of the 
record constituted reversible error. Fuller Co. v. Darragh, 
101 HI. App. 664 ; Wildrick v. Moore, 22 N. Y. Supp. 1119 ; 
Roche V, Lewellyn Iron Works Co., 140 Cal. 563, 74 Pac 
147 ; Manigold v. Black River Traction Co., 80 N. Y. Supp. 
861 ; Cosselnum v. Dunfee, 172 N. Y. 507, 65 N. E. 494 ; 
Sawyer v. Arnold Shoe Co., 90 Me. 369, 38 Atl. 333 ; Tremb- 
lay V. Hamden, 162 Mass. 383, 38 N. E. 972 ; Dow v. Weare, 
68 N. H. 345, 44 Atl. 489 ; Brown v. Svnneford, 44 Wis. 
282, 28 Am. Rep. 582; Smith v. Western Union Tel. Co., 
55 Mo. App. 626; ScJuiidler v. Chicago etc. R. Co., 102 
Wis. 564, 78 N. W. 782; Louisville etc. R. Co. v. Orr, 91 
Ala. 548, 8 South. 360; Thompson v. Toledo etc. R. Co., 
91 Mich. 255, 51 N. W. 995 ; Ensor v. Smith, 57 Mo. App. 
584; Illinois Central R. Co. v. Souders, 79 111. App. 41; 
Jacques v, Bridgeport Horse R. Co., 41 Conn. 61, 19 Am. 
Rep. 483 ; Blum v. Simpson, 66 Tex. 84, 17 S. W. 402. 



326 STRATTON v. NICHOLS LUMBER CO. 

Citations of CounseL [39 Wash. 

John B. Hart and Robert W. Prigmore, for reepandeDts. 
It was negligence to supply the set screw and fail to protect 
it, whore the appliance could easily be replaced by a safer 
one. Crooker v. Pacific Lounge etc. Co., 29 Wash. 30, 69 
Pac. 359 ; Carlson v. ^YiIJceson Coal & Coke Co., 19 Wash. 
473, 53 Pac. 725 ; Washington etc. R. Co. v. McDade, 135 
U. S. 554, 10 Sup. Ct 1044, 34 L. Ed. 235 ; Choctaw etc, 
R. Co. V. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 
96 ; Gevo v. Fall Mountain Paper Co., 68 Vt 568, 35 Atl. 
475 ; Ilomestake Min^ Co. v. Fullerton, 69 Fed. 923 ; Sawyer 
V. Arnold Shoe Co., 90 Me. 369, 38 Atl. 333; Austin v. 
Chicago etc. R. Co., 93 Iowa 236, 61 X. W. 849; Wabash R. 
Co. V. McDaniels, 107 U. S. 454, 2 Sup. Ct 932, 27 L Ed. 
605 ; Bean v. Oceanic Steam Nav. Co., 24 Fed. 124; Nybach 
V. Champagne Lumber Co., 109 Fed. 732 ; Craver v. Chris- 
tian, 36 Minn. 413, 31 N. W. 457, 1 Am. St. 675 ; King v. 
Ford River Lumber Co., 93 Mich. 172, 53 K W. 10; ^«dfer- 
son V. Fielding, 92 Minn. 42, 99 X. W. 357, 104 Am. St. 
665 ; Martin v. California Cent. R. Co., 94 Cal. 326, 29 Pac. 
645 ; Sincere v. Union Compress & Warehouse Co. (Tex. 
Civ. App.), 40 S. W. 326 ; Lowrimore v. Palmer Mfg. Co., 60 
S. C. 153, 38 S. E. 430; Bonner v. Pittsburgh Bridge Co., 
183 Pa. St. 195, 38 Atl. 896; Kehler v. Schwenk, 151 Pa. 
St 505, 25 Atl. 130, 31 Am. St 777 ; Myers v. Hudson Iron 
Co., 150 Mass. 125, 22 N. E. 631, 15 Am. St 176; Troxlerv. 
Southern R. Co., 124 N. C. 189, 32 S. E. 550, 70 Am. St 
580, 44 L. R. A. 313; Greenlee v. Southern R. Co., 122 N. 
C. 977, 30 S. E. 115, 65 Am. St 734, 41 L. E. A. 399; Wit- 
sell V. West Asheville etc. R. Co., 120 N. C. 557, 27 S. E. 
125. The distance from the floor is no protection. King v. 
Ford River Lumber Co., supra; Glens Falls Portland Cement 
Co. V. Travelers Ins. Co., 162 K Y. 399, 56 X. E. 897; 
Pullmans Palace-Car Co. v. Harkins, 55 Fed. 932. It was 
negligence to change the set screw without gi^'ing notice. 
Morton V. Moran Bros., 30 Wash. 362, 70 Pac. 968 ; Craver 
V. Christian, 34 Minn. 397, 26 X. W. 8; Mirick v. Morton, 



STRATTON v. NICHOLS LUMBER CO. 327 

July 1905] Citations of Counsel. 

62 Kan. 870, 64 Pao. 609 ; O'Donnell v. Sargent, 69 Conn. 
476, 38 Ail. 216 ; Ryan v. Chelsea Paper Mfg. Co., 69 Conn. 
454, 37 Atl. 1062 ; Northwestern Fuel Co. v. Danielson, 57 
Fed. 915; Cincinnati etc. B. Co. v. Gray, 101 Fed. 623; 
Ingerman v. Moore, 90 Cal. 410, 27 Pac 306, 25 Am. St 
138 ; McDougall v. Ashland Sulphite-Fibre Co., 97 Wis. 382, 
73 X. W. 327 ; Pullman Palace Car Co. v. Laach, 143 111. 
242, 32 N. E. 285, 18 L. E. A. 215. The master may be 
liable for an injury due to slight forgetfulness or momen- 
tary inattention. Nadau v. White River Lumber Co., 76 
Wis. 120, 43 K W. 1135, 20 Am. St. 29 ; King v. Ford 
River Lumber Co., 93 Mich. 172, 53 N. W. 10 ; McQuillan 
V. Seattle, 10 Wash. 464, 38 Pac. 1119, 45 Am. St. 799. 
There is a presumption that the deceased exercised due care^ 
and the burden of proof is upon the defendant; to show con- 
tributory negligence. Steele v. Northern Pac. R. Co., 21 
Wash. 287, 57 Pac. 820 ; Allend v. Spokane Falls etc. R. Co., 
21 Wash. 324, 58 Pac. 244 ; Rush v. Spokane Falls etc. R. 
Co., 23 Wash. 501, 63 Pac. 500 ; Cogdell v. Wilmington etc. 
R. Co., 132 N. C. 852, 44 S. E. 618; Dalton v. Chicago 
etc. R. Co., 104 Iowa 26, 73 N. W. 349 ; Hopkinson v. Knapp 
£ Spalding Co., 92 Iowa 328, 60 N. W. 653; Texas etc. R. 
Co. v.'Gentry,16S U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 
186; Bums v. Chicago etc. R. Co., 69 Iowa 450, 30 N. W. 
25, 58 Am. Eep. 227. The fact that the accident could 
have happened in one or more ways, does not leave the mat- 
ter to conjecture; we only enter the field of conjecture in 
the absence of all proof. Towle v. Stimson Mill Co., 33 
Wash. 305, 74 Pac. 471 ; Rush v. Spokane Falls etc. R. Co., 
supra; Allend v. Spokane Falls etc. R. Co., supra; Nelson v. 
Willey Steamship & Nav. Co., 26 Wash. 548, 67 Pac. 237 ; 
Conner v. Missouri Pac. R. Co., 181 Mo. 397, 81 S. W. 145 ; 
Southern R. Co. v. Webb, 116 Ga. 152, 42 S. E. 395, 59 
L. R. A. 109 ; Powell v. Southern R. Co., 125 X. C. 370, 34 
S. E. 530; India/napolis St. R. Co. v. Bordenchecker (Ind. 
App.), 70 X. E. 995; Portland Gold Min. Co. v. Flaherty, 



328 STRATTON v. NICHOLS LUMBER CO. 

Citations of Counsel. [39 Wash. 

Ill Fed. 312; Miller v. Inman, 40 Ora 161, 66 Pac^ 713. 
See, also, the following set screw easee especially in point: 
Pruke V. South Park Foundry Machine Co., 68 Minn. 305, 
71 N. W. 276 ; Roth v. Northern Pac. hum. Co., 18 Om 
205, 22 Pac. 842; DauheH v. Western Meat Co., 135 Cal 
144, 67 Paa 133 ; Ouinard v. Knapp, Stout & Co., 95 Wis. 
482, 70 X. W. 671 ; Id., 90 Wis. 123, 62 N. W. 625, 48 Am. 
St. 901 ; Hawkins v. Johnson, 105 Ind. 29, 4 K E. 172, 55 
Am. Rep. 169 ; Keller v. Gaskell, 9 Ind. App. 670, 36 N. E. 
303 ; Id., 20 Ind. App. 502, 50 X. E. 363 ; Galveston Oil Co. 
V. Thompson, 76 Tex. 235, 13 S. W. 60. The mere asking 
of questions relating to indemnity insurance is not reversible 
error. Shoemaker v. Bryant Lumber etc. Co., 27 Wash. 637, 
68 Pac. 380 ; Portland Gold Min. Co. v. Flaherty, 111 Fed. 
312; Wabash Screen Door Co. v. Black, 126 Fed. 721; 
Marande v. Texas etc. R. Co., 124 Fed. 42 ; Belle of Nelson 
Distilling Co. v. Riggs, 104 Ky. 1, 45 S. W. 99 ; Spoonick 
V. Backus-Brooks Co., 89 Minn. 354, 94 N. W. 1079 ; Foley 
V. Cudahy Packing Co., 119 Iowa 246, 93 N. W. 2S4:;Hedlun 
V. Holy Terror Min. Co., 16 S. D. 261, 92 N. W. 31 ; Hous- 
ton Biscuit Co. V. Dial, 135 Ala. 168, 33 South. 268 ; Iroquois 
Furnace Co. v, McCrea, 91 111. App. 337 ; Iroquois Furnace 
Co. V. McCrea, 191 111. 340, 61 N. E. 79 ; Anderson v. Duck- 
worth, 162 Mass. 251, 38 N. E. 510; Gundlach v. SchoU, 
192 111. 509, 61 K E. 332, 85 Am. St. 348 ; Barg v. Bous- 
field, 65 Minn. 355, 68 N". W. 45 ; O'NeUl Mfg. Co. v. Pruitt, 

110 Ga. 577, 36 S. E. 59 ; Shaler v. Broadway Imp. Co., 47 
N. T. Supp. 815. There was no misconduct of counsel. 
Van Lchn v. Morse, 16 Wadi. 219, 47 Pac. 435 ; State v. 
Boyce, 24 Wash. 514, 64 Pac 719; Taylor v. Ballard, 24 
Wash. 191, 64 Pac. 143 ; Chezum v. Parker, 19 Wash. 645, 
54 Pac 22; State v. Moody, 7 Wash. 395, 35 Pac 132; 
State V. Regan, 8 Wash. 506, 36 Pac. 472 ; State v. McCann, 
16 Wash. 249, 47 Pac 443, 49 Pac 216 ; Epps v. State, 102 
Ind. 539, 1 K E. 491; Portland Gold Min. Co. v. Flaherty, 

111 Fed. 312; Westercamp v. Brooks, 115 Iowa 106, 88 N. 



STRATTON v. NICHOLS. LUMBER CO. 329 

July 1905] Opinion Per Cbow, J. 

W. 372 ; Weeks v. Scharer, 129 Fed. 333 ; Cameron Lumr 
her Co. v. Somerville, 129 Mich. 552, 89 N. W. 346; Pitts- 
burg etc. B. Co. v. Kinnare, 203 111. 388, 67 N. E. 826; 
Greenfield v. Detroit etc. R. Co., 133 Mich. 557, 95 liT. W. 
546. 

Cbow, J. — This action was brought by respondeaats, widow 
and minor son of George Stratton, to recover damages for his 
death, which occurred while he was working as an employee 
in the shingle mill of C. H. Nichols Lumber Company, one 
of the appellants, at Ballard, King county, Washington- 
From a judgment awarding damages in the sum of $20,000, 
this appeal has been taken. 

George Stratton, a mill man of twenty years' experience, 
was employed in appellant's mill as a shingle sawyer, being 
in charge of a "ten-block" machine. Within six feet of him 
was another "ten-block" machine operated by one Freeman 
Jensen, a fellow servant. The mill was a two-story structure, 
the ten-block machines being located in the upper story and 
operated by power transmitted by means of certain' shafts, 
belts, and pulleys. In the lower story was the main shaft, 
which was supported by hangers and cross-trees suspended 
from the ceiling, said shaft being about three inches in diam- 
eter and about nine feet above the floor. On this shaft was 
a pulley, over and from which an endless leather belt passed 
to another pulley on a countershaft in the upper room. On 
the countershaft were two other pulleys, from which belts 
passed to the machine, transmitting the power by which it 
was operated. The main shaft when in operation made 
about six himdred revolutions per minute. On the outside 
of the hanger from the main pulley, and towards the end of 
the shaft, a collar was placed, which was held in position by 
an exposed set screw, also about nine feet above the floor. 
The belt running from the main shaft pulley to the counter- 
shaft pulley was new, and respondents contend was tx)o tight. 
On the upper floor an idler, or tightener, was provided, be- 



330 STRATTON v. NICHOLS LUMBER CO. 

Opinion Per Crow, J. [39 Wash. 

ing so arranged as to be thrown against the belt taking up 
slack, thereby causing friction and operating the ten-block 
machina The pulley on the main shaft was forty-two inches 
in diameter, and the one on the countershaft thirty-two indies 
in diameter. 

The accident causing the death of George Stratton occur- 
red on December 18, 1902, at about eight o'clock a. m. A 
short time before, Matthew Carey, the foreman of the mill 
and one of the appellants herein, ordered Mr. Stratton to cut 
out his ten-block machine until quartering time, which would 
be about 9 :30 o'clock a. m., and respondents contend that Mr. 
Carey also ordered him to go below and tie back his main 
belt so as to prevent it from burning by rubbing against the 
main shaft pulley. The mill was stopped. Stratton threw 
off the belt, took two pieces of rope, and went below to tie it 
back. While the mill was stopped, his fellow- servant Jensen 
took advantage of the opportunity to change the saws on his 
ten-block machina Respondents claim that, while Mr. Strat- 
ton was tying back the belt, the foreman, Mr. Carey, ordered 
the mill to start. This is denied by appellants. A signal 
whistle was given, the mill started, and in about two or three 
minutes thereafter, an unusual sound being heard below, the 
mill was stopped, when Stratton's dead body was found on 
tlie floor almost under the shaft, hanger, and set screw, while 
his clotliing and one piece of the rope which he had carried 
were wrapped around the end of the shaft, the collar, and the 
set screw near the bridge-tree, on the side opposite from the 
main pulley. One side of the belt had been tied to the 
hanger or bridge-tree, but the other was not tied back. As 
above stated, the main shaft was about nine feet from the floor. 
On the lower floor^ and almost under the shaft, were two 
benches, one being about twenty-four inches in* height and the 
other about twenty-six. Below the main shaft and pulley, 
s\isix?nded from the hangers and cross-trees, probably about 
six feet from the floor, was a rack constructed of light pieces 
of timber, used for holding sliingle bands. Opposite this 



STRATTON v. NICHOLS LUMBER CO. 331 

July 1905] Opinion Per Cbow, J. 

rack was a window, in the side of the building, with a sill 
or a cleat nailed across it. When last seen alive Mr. Stralr 
ton was up near the shaft with one foot on the band rack 
and the other on the window sill or cleat, tying back one side 
of the belt. No one saw him come in contact with the set 
screw, nor was any one able to tell how he happened to get 
caught. 

Xegligence on the part of appellants is 'claimed by re- 
spondents: (1) In that Carey ordered Stratton to go be- 
low and tie back the belt, which was not a part of his usual 
employment; (2) in the use of the unguarded set screw, 
which is claimed to have been a dangerous device not com- 
monly used, recently placed on the shaft without Stratton's 
knowledge, without notice to him, and improperly adjusted ; 

(3) in using a belt from the main pulley to the countershaft 
pulley which was too tight and therefore difficult to remove; 

(4) in that Carey ordered the mill started while Stratton 
was tying back the belt. All of these claims are vigorously 
denied by appellants. 

Many assignments of error have been presented, a number 
of which are sufficient to warrant a reversal ; but as we have 
arrived at a conclusion which necessitates a dismissal of this 
action, we will not consider them further than to discuss one 
based upon misconduct of counsel. At the time of empanel- 
ing the jury, respondents' attorney persisted in asking each 
of the jurors on their voir dire whether they were connected 
with any guaranty or casualty insurance company, saying in 
explanation : "Any kind that insured a mill company against 
loss; that is, if the mill company was negligent, why then 
some insurance company paid the damages ;" and when coun- 
sel for appellants objected, remarked: "You don't mean to 
say that the Xichols mill company is not insured ?" Again, 
upon cross-examination of one E. B. Palmer, an attorney and 
one of appellants' witnesses, counsel asked if he was not at- 
torney for the casualty company which insured the mill. An 
objection being sustained, he then oflFered to prove by cross- 



332 STRATTON v. NICHOLS LUMBER CO. 

Opinion Per Cbow, J. [39 Wash. 

examination of Mr. Palmer that he was such attorney. Under 
the authority of Iveraon v. McDonnell, 36 Wash. 73, 78 Pac 
202, and Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 
Pac. 431, this was improper conduct and constituted preju- 
dicial error. Again, under the guise of questions propounded 
to witnesses, counsel for respondents placed himself in the 
attitude of making statements of alleged faet^ doing so re- 
peatedly, over objection of opposing counsel, so mudi so in 
fact that, in making an examination of the record, we our- 
selves have experienced much difficulty in distinguishing 
these unsworn statements from evidence given by witnesses. 
It can be readily seen that a jury might easily get 
these statements and expressions confused with evidence 
actually admitted. As one illustration: Counsel for appel- 
lants propounded this question to a witness: "Well, now, it 
is not customary to box shafts that are up over a man's head, 
is it ?" Whereupon counsel for respondents stated : "I object, 
if your honor please, as incompetent because it is customary 
to box shafts and protect them wherever they are dangerous, 
and they are dangerous wherever people have to be." This 
course of coimsel was continuous, being maintained during 
the entire trial, although constantly objected to by attorney 
for appellants, and in face of the fact that in nearly every 
instance such objections were sustained. It is true the trial 
was bitterly and ably fought on both sides, and in the heat 
of a strenuous contest counsel may have in part failed to fully 
realize the course he was pursuing. But such conduct in the 
presence of a jury is inexcusable, and cannot fail to be highly 
prejudicial. Were this the only error assigned, we would, 
in the light of the record, be compelled to reverse the judg^ 
ment by reason of such misconduct 

At the close of respondents' case, and again at the close of 
the entire case, appellants challenged the sufficiency of the 
evidence and moved for judgment. Many points are pre- 
sented in support of this motion, but we will consider two 
only. 



STRATTON v. NICHOLS LUMBER CO. 333 

July 1905] Opinion Per Cbow, J. 

(1) Appellants contend that, even though it be conceded 
negligence has been proven on their part, still there is an 
utter failure of evidence showing or tending to show that the 
accident was the proximate result of such negligence. In 
other words^ it is contended that, as no one saw the accident 
or knew how the deceased happened to come in contact with 
the set screw, it will not do for the court or the jury to specu- 
late, surmise, or guess as to how the deceased was caught, or 

the accident happened. In' support of this contention appel- 

• 

lants cite, Hansen v. Seattle Lumber Co., 31 Wash. 604, 72 
Pac. 457; Armstrong v. Cosmopolis, 32 Wash. 110, 72 Pac 
1038; Reidhead v. Skagit county, 33 Wash. 174, 73 Pac, 
1118, which cases we think conclusive on this point. In Han- 
sen V. Seattle Lumber Co., supra, this court said : 

"In order for the respondent to recover for his injury, it 
was necessary for him to show not only that the appellant had 
been guilty of negligence, but that such negligence was the 
cause of his injury. It is not necessary, of course, that the 
facts be proven by direct evidence. Circumstantial evidence 
of the fact is sufficient. But there must be some evidence, 
either direct or circumstantial, that there was negligence on 
the one side, an injury resulting in damages on the other, 
and that the injury and damages followed the negligence, and 
were produced thereby. . . . But there is no direct evi- 
dence as to the cause of the injury, and it is not proving his 
case by circumstantial evidence for the respondent to show 
that there were causes, for which the apx^ellant would be liable, 
which could have produced the injury, without showing that 
it could not have been produced in any other manner, or in a 
manner for which the appellant would not be liable." 

After making the above statement, this court proceeds to 
quote with approval from the case of Patton v. Texas etc. R. 
Co., 179 U. S. 658, 21 Sup. Ct. 275, language of Mr. Justice 
Brewer which is especially pertinent here. In Armstrong v. 
Cosmopolis, supra, Dunbar, J., uses the following language: 

"But while it is true that the weight of the testimony is 
entirely for the jury, yet mere speculation and conjecture 
must not be confused with legitimate testimony. There are 



334 STRATTON v. NICHOLS LUMBER CO. 

Opinion Per Cbow, J. [39 Wash. 

many theories which might be advanced, which would be mere 
guessing, that would be as reasonable as the theory contended 
for by appellants." 

In addition to the above authorities, the following might 
be consulted as supporting appellants' proposition: Bailey, 
Master's Liability, p. 503 et seq.; Mountain Copper Co. 
V. Van Buren, 123 Fed. 61. Applying the principles above 
enunciated, we find an utter absence of evidence showing or 
tending to show how the deceased came in contact with the 
set screw. There is no question but that he was caught. The 
last seen of him, however, he was on the opposite side of the 
hanger from the collar and set screw, with one foot upon the 
band rack and one on the window sill, tying back the belt. 

Ten special interrogatories were propounded to the jury, 
two of which, with the answers of the jury, read as follows: 

"Q. Did he [Stratton] place himself against the set screw 
or shaft knowingly and intentionally? A. No. Q. Did 
he come in contact with it accidentally ? A. No." 

It is contended by appellants that these answers are abso- 
lutely inconsistent. On the other hand, respondents contend 
they are not inconsistent, but are warranted under all the cir- 
cumstances of the case, and in support of their contention 
they urge that the interrogatories were unfair ; that their sub- 
mission was a trick upon the part of appellants, seeking to 
take advantage of the jury; that the jury did all it could in 
answering them in the negative ; that such answers were cor- 
rect, for the reason that there was no evidence tending to 
show how the deceased came in contact with the set screw. 
Eitlier the appellants are correct in their position that the 
answers are inconsistent, or respondents are correct in say- 
ing that the answers given became necessary by reason of the 
absence of evidence. Upon either theory, no explanation of 
the accident can be made except by speculation, surmise, or 
guess, and under the above authorities, this cannot be per- 
mitted. We are of the opinion that the answers to these two 



STRATTON v. NICHOLS LUMBER CO. 335 

July 1905] Opinion Per Cbow, J. 

interrogatories are inconsistent with the general verdict^ and 
that said verdict should not be sustained. 

(2) Appellants also contend that, in tying back the belt, 
the deceased placed himself in a dangerous position, where- 
as he could have done it from another position which was 
perfectly safe and free from danger, and urge that where a 
ser\'ant has an opportunity of doing work in two waysj one 
safe and the other dangerous^ and accepts the dangerous 
method, he is guilty of contributory negligence and cannot 
recover even though his master be negligent. In support of 
this position appellants contend, and we think with much 
reason, that it was not necessary for the deceased to climb 
upon the band rack and sill to tie back the belt It is in 
evidence that there were two benches under the shaft, twent.^ - 
four and twenty-six inches in height, respectively. The shaft 
was nine feet from the floor, or about seven feet above these 
benches. The pulley w^s forty-two inches in diameter, which 
necessarily brought the belt at least twenty-one inches below 
the shaft, or about five feet and three inches above the 
benches; and appellants contend that, instead of climbing 
upon the band rack, the deceased could have easily stood upon 
these benches and tied back the belt without coming near, or 
in contact with, the shaft or set screw ; that this method was 
perfectly safe, and that, had it been adopted, Stratton would 
have been in no danger whatever whether the machinery was 
moving or not We think this contention should be sustained. 
Hoffman v. American Foundry Co., 18 Wash. 287, 61 Pac. 
385 ; Glassheim v. New York Economical Print Co., 13 
Misc. Rep. 174, 34 N. Y. Supp. 69 ; Kennedy v. Merrimack 
Paving Co., 185 Mass. 442, 70 N. E. 437. 

It is urged, however, by respondents that it was necessary 
for Stratton to climb up on the band rack to take off the 
beltj as it was too tight and could not be readily removed 
from below. The record shows that, before leaving the ten- 
block machine above^ he removed the belt. The upper pulley 
was thirty-two inches in diameter, and when the belt was re- 



336 STRATTON v. NICHOLS LUMBER CO. 

Opinion Per Crow, J. [39 Wash. 

moved from said pulley it would have necessarily fallen at 
least sixteen inches. It could not, therefore, have been too 
tight. It must have been off of and below the lower pulley 
when Stratton went downstairs. In any event, he had tied it 
back to one hanger before he was hurt, and must have had it 
off the pulley at that time. It appears to be a proposition cap- 
able x)f mathematical demonstration that it was absolutely un- 
necessary for the deceased to climb upon the band rack to tie 
back the belt, and that he could have tied it back while stand- 
ing on the benches. 

It is also contended by respondents that the foreman was 
guilty of negligence in ordering the mill started while Strat- 
ton was tying back the belt. There is no evidence that any 
intention existed of not starting the mill, or that it was not 
customary for it to be in operation while an employee was 
tying back a belt. But in any event, it is in evidence that, 
before the mill was started, a signal was given by two blasts 
from a steam whistle, and that the mill had been running 
two or three minutes before the accident occurred. It is self- 
evident that a person caught upon a shaft revolving at the 
rate of six hundred revolutions a minute would be thrown 
off in not to exceed one or two seconds of time. The mill, 
therefore, must have been running for a considerable time 
before deceased was caught on the set screw. In any event, 
he had ample notice of the starting of the mill by the giving 
of the signal, which could be readily heard where he was 
working. 

We have before us a large model of the mill, introduced 
in evidence by respondents, which shows the relative posi- 
tions of the shafts, pulleys, collar, set screws, hangers, band 
rack, belts, benches, idler, ten-block machine, and, in fact, 
all appliances in the mill material to a correct understanding 
of the situation After a most painstaking and careful exam- 
ination of all the evidence, aided by the presence of this 
model, we are unable to see how it can be successfully con- 
tended that the deceased was not guilty of contributory neg- 



LILLY V. LILLY, BOGARDUS & CO. 337 

July 1906] Syllabus. 

ligence. The accident was a most lamentable and unfortunate 
one. The respondents have been deprived of husband and 
father, and their loss is immeasurable. This, however, is 
not sufficient reason for awarding damages against the appel- 
lants, who are not liable. The courts must administer the 
law according to its well-established principles. 

The judgment of the trial court is reversed, and the cause 
remanded, with instructions to dismiss the action. 

Mount, C. J., Fullebton, TTadley, and Rudkin, JJ., 
concur. 

Boot, J., having been of counsel, took no part 



(No. 5682. Decided July 27. 1906.) 

J. E. Lilly et al.. Respondents, v. Lilly, Bogabdus & 

Company, Appellant} 

Appeal — Review — ^Findings — Sales — ^Evidence. The findings of 
the trial court establishing a sale will not be disturbed on appeal 
when supported by the direct testimony of two witnesses and cor- 
roborating circumstances, as against the conflicting evidence of one 
witness. 

Frauds, Statute op — Sales — Pabt Payment. A payment and part 
performance, sufficient to take an oral sale of 100 tons of hay and 
oats out of the operation of the statute of frauds, is shown, where 
two witnesses testify positively that, when the contract was made 
orally with the president of the vendor on its behalf, over $1 JOO in 
gold dust was delivered to him at Dawson, about $700 of which was 
in part payment for the goods, and in response to a telegraphic 
order, the vendor shipped five tons thereof to Dawson. 

Compbomtse and Settlement — ^Acceptance of Pabt — ^Accord and 
Satisfaction. The acceptance of a check for part of the sum claimed 
does not amount to an accord and satisfaction where, upon an angry 
dispute over the amount due, the defendant gave the check under a 
direction from the plaintlfT to pay what It was willing, and they 
would "scrap" over the balance. 

1 Reported in 81 Pac. 852. 

22—89 WASH. 



338 LILLY V. LILLY, BOGARDUS ft C50. 

Opinion Per Hadley, J. [39 Wash. 

Sales — Failube to Deliveb — Measube of Damages — Mabket 
Value at Point of Deliveby. The measure of damages for the failure 
of the vendor to deliver hay and oats, sold in Seattle, for shipment 
to Alaska before the close of navigation, for resale on the Etaiwson 
market, is the net profit that could have been realized on the Dawson 
market, where by reason of the default the vendees were unable to 
obtain other goods during the current season. 

Costs — Juby Fee — Waiveb of Juby Afteb Payment. It is proper 
to tax as costs the advance jury fee paid by the prevailing party 
prior to a stipulation to waive a Jury trial. 

Appeal from a judgment of the superior court for King 
county, Hatch, J., entered September 8, 1904, upon findings 
in favor of the plaintiffs, after a trial before the court^ a jury 
being waived, in an action on contract. Affirmed. 

Allen, Allen & Stratton, for appellant. 
John E. Humphries, for respondents. 

Hadley, J. — On the 4th day of September, 1901, J. E. 
Lilly and Frances Lilly, his sister, were copartners under 
the firm name of J. E. Lilly & Co., and were engaged in 
business at Dawson, Yukon territory. As such firm, they 
bring this action against Lilly, Bogardus & Co., a corpora- 
tion, organized under the laws of this state^ having its prin- 
cipal place of business at Seattle. The complaint avers, that 
on the date above named the defendant, through its duly 
authorized agent, Charles H. Lilly, its president, sold to 
plaintiffs, at Dawson, fifty tons of hay and fifty tons of 
oats, and, as part of the contract of sale, undertook and 
agreed orally with plaintiffs to ship the oata and hay from 
Seattle to the plaintiffs at Dawson ; that the defendant further 
agreed that the directions for said shipment should be im- 
mediately sent by telegraph, by its said agent, from Dawson 
to Seattle; and that tlie shipments should be made as soon 
as practicable in the ordinary course of business; also, that 
it was agreed that the price to be paid should be the prevail- 
ing market price of hay and oats in the open market, in 
Seattle^ on the day of the receipt by defendant in Seattle 



LILLY V. LILLY, BOGARDUS ft CO. 339 

July 1905] Opinion Per Hadlet, J. 

of the telegraphic directions regarding the shipments; that 
said tel^raphic instructions were sent to defendant from 
Dawson, hy its said agent, on the 4th day of September, 
and were received by it on the 11th day of September. Aver- 
ments are made as to the price of hay and oats in the open 
market in Seattle on the last named date. It is also averred 
that, on the 9th day of said month, the plaintiffs paid to 
defendant the sum of $1,769.68, and that it was then agreed 
that the said sum should be applied and used by defendant 
as follows: $1,076 was to be applied on an account then 
owing from plaintiffs to defendant for twenty-five tons of 
hay and twenty-five tons of oats previously purchased, and 
the remainder of said payment, amounting to $694.68, was 
to be applied and credited as part payment in advance on 
account of said fifty tons of hay and fifty tons of oats pur- 
diased as aforesaid. 

It is further alleged that the defendant shipped to the 
plaintiffs, of the said fifty tons of hay, five tons and no more^ 
which five tons were duly received by plaintiffs under said 
contract of purchase^ and as a part of said shipment of fifty 
tons of hay and fifty tons of oats; that said hay and oats 
were purchased by plaintiffs to be sold by them in the Daw- 
son market, which fact was well known by defendant 
at the time of the purchase; that, on and after the date of 
said purchase, the only available route for the said shipment 
was by ocean freight from Seattle to Skagway, thence by 
the White Pass railroad to White Horse, and from the latter 
place to Dawson by river steamers; that this route of ship- 
ment is usually closed about the 25th of October in each 
year, all of which facts were well knovTn to the defendant 
at the time of said sale, and were taken into consideration 
in making said contract; that it was further known to the 
defendant that it would be necessary to use reasonable dili- 
gence to obtain prompt shipment in order that the same 
might reach the plaintiffs before the close of shipments by 
said route, and that, in consideration of the purchase, the 



340 LILLY V. LILLY. BOGARDUS ft CX). 

Opinion Per Haslet, J. [39 Wash. 

■ 

part payment thereon, and the agreement to pay the full 
purchase price, the defendant agreed to use reasonable dili- 
gence in shipping so that plaintiffs oould receive the ship- 
ment by said route before it was closed. It is alleged that 
the defendant did not use any diligence, and that it made no 
effort whatever to make the shipment other than the five tons 
of hay aforesaid, and that no shipment was made other than 
as above stated. 

Averments are made as to the amount of freight, duty and 
handling charges the plaintiffs would have been required to 
pay, if said shipment had been made ; also, as to the market 
value of hay and oats in Dawson at the time the shipment 
should have arrived there, October 25. It is alleged that, 
from the time the sale was made^ and until after said October 
25, the defendant led the plaintiffs to believe that it would 
fulfill its said contract, and notified them that all orders had 
been filled and all goods shipped. Damages in the sum of 
$4,290, and interest thereon, are demanded. 

The answer denies many of the material allegations of 
the complaint, and affirmatively alleges that the plaintiffs 
orally requested the defendant, through its president and 
representative who was at Dawson, to ship to them fifty tons 
of hay and fifty tons of oats, being the same hay and oats 
referred to in the complaint; that said representative then 
and there stated to plaintiffs that he did not know whether 
it would be possible for defendant to make the shipment, or 
whether it would be willing to extend to plaintiffs the de- 
sired amount of credit ; that it was agreed that defendant's 
said president should, by telegraphio message, request de- 
fendant to make the shipment, and that it should have the 
right to either ship or not ship as it saw fit; that sujch mes- 
sage was sent, but that the defendant was unable to procure 
the necessary amount of hay and oats^, or the necessary 
freight space upon vessels for the shipment ; also, that it did 
not desire to extend further credit to plaintiffs. It is also 
alleged that the agreement relating to the sale was wholly 



LILLY V. LILLY. BOGARDUS ft CO. 341 

July 1905] Opinion Per Hadlet, J. 

oral ; that the value of the hay and oats exceeded $100 ; that 
no part of the purchase price was paid ; that no goods were 
delivered ; and that the agreement of sale was therefore within 
the statute of frauds. The answer also contains a plea of 
accord and satisfaction, and the affirmative defenses are de- 
nied by the reply. The cause was tried by the court without 
a jury, and resulted in a judgment in favor of plaintiffs in 
the suim of $2,500. The defendant has appealed. 

It is first urged that the court erred in not finding that 
the order for the one hundred tons was conditional, as alleged 
in appellant's answer. The court found that the contract of 
sale was absolute, and without conditioDs. The record of the 
evidence is voluminous, including a large amount of oral 
testimony and a mass of written correspondence. We have 
laboriously read the statement of facts, and the finding of the 
court in the above particular is supported by the testimony 
of the respondents. They are respectively the brother and 
sister of Charles H. Lilly, the president of appellant cor- 
poration, who made the sale in behalf of appellant. Opposed 
to the teetimony of both the respondents is that of their 
said brother. The court evidently relied upon the testimony 
of the respondents, which was direct and unequivocal. That 
of their brother was equally direct at the time of the trial, 
but from indications appearing in the correspondence that 
he may not have remembered all the details concerning this 
sale, it was not necessary that the court should believe that 
his testimony was intentionally false, but rather that he 
might have forgotten just what did take place between him 
and the respondents. The courts after hearing and observing 
these witnesses during a long and tedious trial, and after 
considering the correspondence between the parties, reached 
the conclusion that the respondents' testimony was correct; 
and we think, under the whole evidence, that we should not 
be warranted in disturbing the finding. 

It is next complained that the court should have found 
that there was no written memorandum of the sale, no part 



342 LILLY V. LILLY, BOGARDUS ft CO. 

Opinion Per Hadlet, J. [39 Waah. 

delivery of the goods, and no payment made, it being con- 
tended that the facts show the contract to have been within 
the statute of frauds. No specific finding was made as to 
the first two points above mentioned, but it was expressly 
found that respondents paid appellant on account of such 
sale the sum of $694.99. It is admitted that the respondent 
firm was not indebted to appellant in any sum when Charles 
H. Lilly, representing appellant, went to Dawson in August, 
1901. It is also admitted that on the 30th day of that month 
respondents purchased from appellant twenty-five tons of hay 
and twenty-five tons of oats, and that their indebtedness upon 
that purchase was all they were owing appellant at the time 
they made the purchase of the one hundred tons, on Sep- 
tember 4. It is not disputed that, on September 9, respond- 
ents delivered to their brother, Charles H. Lilly, gold dust 
of the value of $1,769.68. The respondents both testified 
positively that the delivery was made to their brother ad the 
representative of appellant, and that it was then agreed that 
appellant should credit them by reason of the delivery of the 
gold dust with the full value thereof, and that it should be 
applied to the payment in full of the said purchase of August 
30, in the sum of about $1,075, and the balance should be 
applied upon the indebtedness for the purchase of the one 
hundred tons. The appellant did afterwards credit respond- 
ents with the full value of the ore, as ascertained through the 
assay office in Seattle. Charles H. Lilly testified that there 
was no agreement to credit any part of it upon, the one- 
hundred-ton deal. But we think upon this subject, also, that 
the weight of the evidence sustains the court's finding that 
a payment was made and received upon that purchase. The 
court made no finding one way or the other as to whether 
there was a delivery of any portion of the one hundred tons. 
We think a finding that there was a delivery of five tons of 
hay thereon is justified by the evidence. There was such a 
shipment and delivery that was not ordered through any 
other deal between the parties. It was shipped at the time 



LILLY V. LILLY, BOGARDUS ft CO. 34.3 

July 1905] Opinion Per Hadley, J. 

the larger shipment was to be made, and we think it can be 
accounted for only by reference to that poirchase. For the 
reason, therefore, that there was a part payment, and also 
part delivery, the contract was not within the statute of 
frauds. 

The next point urged is that the court erred in not finding 
that there was an accord and satisfaction between the parties. 
Some time before the bringing of this suit, respondent J. E. 
Lilly was in the office of appellant, in Seattle^ when an offer 
was made to adjust the differences between respondents and 
the corporation. Propositions by way of compromise were 
made by respondent J. E. Lilly, but they were not accepted. 
Appellant admitted some liability to respondentsi at that 
time, but did not take into account any liability by reason 
of respondents' loss growing out of the failure to complete 
the one-hundred-ton shipment. J. E. Lilly testified that he 
finally told appellant to pay what it was willing to pay, and 
that they would "scrap'' over the balance. Appellant then 
made a check payable to the order of respondent firm for 
$194.46. No memorandum was made upon the check that 
it was in full settlement of accounts, and no receipt passed 
between the parties to that effect. In view of the fact that 
respbndents were then claiming something like $2,600, to- 
gether with the further fact^ appearing in evidence, that a 
sharp and even angry dispute occurred between the parties 
just before the check was given, it seems improbable that the 
giving of the check was the result of an agreed settlement of 
the differences, in the absence of some note thereon or receipt 
to that efffect. The testimony of J. E. Lilly upon that subject 
seems reasonable, when viewed in the light of attending cir- 
cumstances^ and we think the court did not err in refusing 
to find that there was an accord and satisfaction ; especially 
inasmuch as the burden was upon appellant to show that fact. 

Appellant contends that the damages allowed were excess- 
ive. The sum allowed was a little more than half that de- 
manded by respondents. It is said that to sustain the dam- 



344 LILLY V. LILLY, BOGARDUS ft CO. 

Opinion Per Haolet, J. [39 Wash. 

ages found they must be measured by the Dawsoix market; 
whereas, it is argued that they should be measured by the 
Seattle market. We think, under the contract, thQ damages 
must be measured with reference to the^ Daw^n market. The 
court found that appellant knew, when the contrac<i was made^ 
that the goods were to b^ sold in the Dawson market, and 
that it was necessary for that purpose that they should reach 
Dawson before the close of navigation for the season. Cer- 
tainly, respondents' damages must have been the amount of 
profits that they would have realized from the Dawson market, 
if the shipment had been made and the goods had arrived 
there as agreed. They relied upon this expected shipment, 
were informed that all orders had been shipped, and it was 
impossible for them to obtain similar goods from any other 
soui'ce^ after they learned that the shipment had not been 
made. Where a party in a distant place sells and agrees to 
deliver goods at a designated point, where he knows they are 
to be sold by the vendee, the measure of damages is the 
differenoe between the purchase price at the place of pur- 
diase and the market value at the point to which they are 
to be shipped, and where they are to be sold, less cost of 
transportation and necessary handling and sale expenses. 
McCormick Harvesting Mach. Co. v. Jensen, 29 Nelx 102, 
45 N. W. 160 ; Campbellsville Lumber Co. v. BradUe, 96 Ky. 
494, 29 S. W. 313; Cochbum v. Ashland Lumber Co., 54 
Wis. 619, 12 K W. 49; Booth v. Spuyten etc. Mill Co., 
60 K Y. 487; Johnson v. Allen, 78 Ala. 387, 56 Am. Repi 
34 ; Austrian & Co. v. Springer, 94 Mich. 343, 54 N. E. 50, 
34 Am. St 350. The amount of damages allowed by the 
court was within the above rule^ and there is ample testimony 
to support it 

Appellant assigns error in that the court taxed, as a part 
of respondents' costs, a twelve-dollar jury fee, which they 
had paid into the registry of the court Afterwards it was 
stipulated to try the cause without a jury. Appellant urges 
that it should not be charged with this cost The jury fee 



STATE V. COX. 345 

July 1905] Opinion Per Root, J. 

was, however, a proper disbursememt for respondents to maka 
It inured to the benefit of appellant and established its right 
to a jury trial without payment on its part. When it subse- 
quently developed that both parties were willing to try with- 
out a jury, respondents could not recall the fee. It therefore 
became a regular and legal disbursement in the case. Bal. 
Code, Section 5167, provides that the prevailing party "shall 
be entitled to his costs and disbursements." It was therefore 
not error to tax the jury fee in favor of respondents. 
The judgment is affirmed. 

Mount, C. J., Rudkin, and Ckow, JJ., concur. 



(No. 6548. Decided July 27, 1906.) 

The State of Washington, Respondent, v. A. B. Cox, 

Appellant} 

Cbiminal Law — ^Bubolabt — Infobmation — ^Vabiancs. It Is not a 
material variance that an information charged the burglary of the 
residence of F "situated and numbered 1206, S avenue/' and the 
proof showed that F occupied apartment No. 14 of a building the 
common entrance to which was number 1206, S avenue. 

Appeal from a judgment of the superior court for King 
county, Tallman, J., entered June 10, 1904, upon a trial and 
conviction of the crime of burglary. Affirmed. 

William C. Keith, for appellant. 

Kenneth Mackintosh and W. T. Scott, for respondent. 

Root, J. — ^Appellant was prosecuted jointly with one Reed 
for burglarizing "the dwelling house of Jacob Furth, situ- 
ated, and numbered 1206, Summit avenue, in the city of 
Seattle." He was convicted, and from the judgment and 
sentence, he appeals to this court. 

It is contended that there was a fatal variance between the 

1 Reported in 81 Pac. 848. 



346 IRWIN V. BUFFALO PITTS CO. 

Syllabus. [39 Wash. 

proof and the allegations of the information as to the prem- 
ises entered, the evidence showing that Furth and family 
occupied apartment No. 14 of a huilding the common entrance 
to which was No. 1206, Summit avenue. If this constituted 
a variance, which we do not believe it did, it was an im- 
material one which did not prejudice the rights of appellant 

Error is also predicated upon the admission of the testi- 
money of detective Wappenstein, as to a conversation had 
with defendant while the latter was under arrest Appellant 
had an opportunity to show all of the circumstances surround- 
ing the parties at the time of said conversation. Nothing 
was shown to render incompetent or immaterial the testimony 
as to what was said on that occasion. The giving of some of 
the instructions is assigned as error ; but an examination of 
them fails to reveal anything prejudicial to appellant 

The judgment of the trial court is aflSrmed. 

Mount, C. J., Fulleeton, Hadley, Kudkiw^ and Cbow, 
JJ., concur. 



(No. 5670. Decided July 27. 1905.) 

Frank Iewin et ah. Respondents, v. Buffalo Pitts 

Company, Appellant} 

Pleading — Answer — Admission — Constbuction — Inconsistent 
Averments. Express admissions in an answer control direct aver- 
ments to the contrary, since the pleading must be construed most 
strongly against the pleader, and in the absence of an amendment 
evidence contrary to the admission is properly excluded. 

Pleadings — Amendment — Sukprise — Continuance — Discretion. 
Where plaintiff relies upon an express admission in the answer and 
insists upon claiming a surprise, a refusal to allow an amendment 
except upon condition of a continuance, is within the discretion of 
the court. 

Pleading — Answer — Defenses — ^When Not Inconsistent — Con- 
tracts. In an action upon a written contract to recover commissions 
for the sale of machinery, a partial defense that the contract con- 

1 Reported In 81 Pac. 849. 



IRWIN V. BUFFALO PITTS CO. 347 

July 1905] Syllabus. 

tained a provision that ten per cent of any notes taken should be 
deducted from the commissions, if the note was not paid at maturity 
and expense was incurred, is not inconsistent with a defense setting 
up the statute of limitations, settlement, and that the sale was under 
another contract; and it is error to exclude evidence thereof. 

Evidence — ^Lettebs of Pakty — Failuee to Reply — ^Attobneys — 
Authority. The failure of an attorney for collection to reply to 
letters asserting the debtor's version of a contract, does not admit 
their contents, or render them admissible in evidence as implied 
admissions of his client 

Appeal and Bbbor — Review — Trial — Comments — Harmless 
EiBBOR. Comments of the court as to the incompetency of letters, at 
the time of properly excluding them, is not prejudicial error. 

Evidence — Lettebs — Competency — ^Failure to Answeb — Admis- 
sions — ^Witnesses — Impeachment. The failure to answer letters or 
deny the statements therein, does not amount to an admission of 
the statements, so as to make the letters admissible to impeach testi- 
mony to the effect that that the party never admitted the state- 
ments; and the letters are properly excluded, even if competent as 
independent evidence, when offered only for the purpose of impeach- 
ment, where they contain nothing contrary to the evidence of the 
witness to be impeached. 

Contracts — ^Evidence — Immaterial Contingencies. An oral con- 
tract is to be proved by what is said and done, and objections to 
questions as to what a party would or might have done if the con- 
tract had not been as claimed are properly sustained. 

Principal and Agent — Action for Commissions — ^Defenses — Evi- 
dence. Upon a claim by defendant that plaintiffs were to sell certain 
secondhand machinery and obtain commissions due them therefrom, 
evidence as to what was done with the machinery is admissible as a 
circumstance for the Jury. 

Appeal — Instructions — Harmless Error — Compromise and Set- 
tlement. No prejudice can result from an Instruction to find for the 
appellant if the Jury find that a "full and fair" settlement was made, 
when the fairness of the settlement was in no way questioned. 

Principal and Agent — ^Action for Commissions — Cash Sales — 
Acceptance of Goods in Lieu of Cash. In an action for specified 
commissions on the sale of machinery, under a written contract 
authorizing only cash sales, the acceptance by the principal of second- 
hand machinery in lieu of the cash would be the equivalent of cash; 
and the failure to take cash could not be set up to defeat the agent's 
commissions. 

Appeal — ^Review — Verdict. A verdict upon directly conflicting evi- 
dence is conclusive on the supreme court. 



348 IRWIN V. BUFFALO PITTS CO. 

Opinion Per Kudkik, J. [39 Wash. 

Appeal — Decision — Reduction of Judgment. On reverains a 
judgment for error in excluding evidence of a partial defense in a 
specific sum, the respondent will be permitted to consent to a re- 
duction of the Judgment to the extent of such sum. 

Appeal from a judgment of the superior court for Spokane 
county, Belt, J., entered October 13, 1904, upon the verdict 
of a jury rendered in favor of the plaintiffs, after a trial on 
the merits, in an action to recover commissions. Reversed 
provisionally. 

James A. Williams and Denton M. Crow, for appellant. 
Men^itt & Merriit, for respondents. 

RuDKiN, J. — On the 14th day of March, 1900, the de- 
fendant entered into a written contract with the plaintiffs^ 
whereby the plaintiffs were constituted agents of the defend- 
ant for the sale of farm machinery, at an agreed commission 
of twenty per cent on the printed price list of all machinery 
sold under the contract. On the 23d day of April, 1900, 
the parties entered into a second written contract, whereby 
the plaintiffs were constituted agents of the defendant for 
the sale of certain wind stackers, at an agreed commission of 
$25 on each stacker sold under the contract. On the 17th day 
of August, 1900, the plaintiffs, as such agents, sold to one 
Berdan, a separator, engine, and other appliances, for the sum 
of $3,350, and a wind stacker for the sum of $250. This 
action was brought to recover the commissions on the two 
sales. 

The defendant admitted the sales, but denied that they 
were made under the contracts above referred to, copies of 
which were attached to the answer. In addition to the de- 
nials, tlie answer contained the following affirmative defenses: 
(1) The statute of limitations; (2) that the sale of the ma- 
chinery to Berdan was on the following terms and conditions: 
Berdan turned in a secondhand separator and engine^ in 
part payment of the purchase price, at an agreed valuation 
of $1,000, and executed three promissory notes, aggregating 



IRWIN V. BUFFALO PITTS CO. 349 

July 1905] Opinion Per Rudkin, J. 

the sum of $2,350, for the balance; that, at the time the 
machinery was sold to Berdan, it was agreed between the 
plaintiffs and the defendant that the plaintiffs' commission 
should rest in the secondhand machinery, that the secondhand 
machinery should be sold and $360 of the selling price paid 
over to the defendant, and that the balance of the selling 
price should constitute the plaintiffs' commission on the sale ; 
and it was further alleged in this defense that the plaintiffs 
were only authorized to sell for cash, under the written con- 
tracts between the parties; (3) a settlement of the matter in 
controversy; and (4) that the contract between the parties 
contained a provision that, if any note given for machinery 
became delinquent and the defendant incurred extra expense 
in its collection, ten per cent of such note should be charged 
against^ and deducted from, the commissions due the plain- 
tiffs; and it was averred that Berdan permitted two of the 
machinery notes to become delinquent, and the defendant was 
greatly delayed and incurred extra expense in their collection. 
The reply in substance denies these affirmative defenses. The 
case was tried before a jury, and from a verdict and judg- 
ment in favor of the plaintiffs, the defendant appeals. 

The first error assigned relates to the exclusion of evidence 
tending to establish the i^ourth affirmative defense. Para- 
graj^ 10 of the complaint alleged that the first two notes 
to mature were paid at maturity, and that a part of the third 
note of $950, which matured October 15, 1902, was paid on 

the ...• day of , 1902, and the balance in 1903. 

This paragraph of the complaint was expressly admitted by 
the answer. As stated in the affirmative defense, the con- 
tract under which the respondents claimed to have sold the 
machinery provided that, if any note given for machinery 
became delinquent and the appellant incurred extra expense 
in its collection, ten per cent of such note should be deducted 
from the commissions due the respondents. The affirmative 
defense alleged that the two last notes to mature were not 



350 IRWIN V. BUFFALO PITTS CO. 

Opinion Per Rudkizt, J. [39 Wash. 

paid at maturity, and that the appellant had incurred extra 
expense in their collection. 

Wlien the apj)ellant oflFered to prove that the last two notes 
were not paid at maturity, it was met with the objection that 
the answer expressly admitted paragraph 10 of the com- 
plaint, which alleged that the second note was paid at ma- 
turity. We think the objection was properly sustained as to 
this note. The question of inconsistent defenses does not 
arise here, as an admission of a paragraph of a complaint is 
not a defense. The answer contained an express admission 
that the second note was paid at maturity, and a direct avei^ 
ment that it was not paid at maturity. A pleading is con- 
strued most strongly against the party who interposes the 
plea, and we have no doubt that the express admission should 
control, and exclude testimony tending to show the contrary, 
until the inconsistency was removed or obviated by amend- 
ment 

The respondents insisted that they had relied on the ad- 
missions in tlie answer, and would not be ready to proceed 
with the trial if an amendment were allowed- The court- 
thereupon intimated that it could not allow an amendment, 
unless there was a continuance. The appellant contended 
that the respondents were suflSciently advised as to the nature 
of its defense, and were not taken by surprise, but the court 
ruled otherwise, and denied the application to amend. There 
was no error in this ruling. The appellant insisted on the 
right to amend during the trial, without a continuance, and 
a refusal to permit an amendment on such terms was a proper 
exercise of the court's discretion. 

The appellant thereuix)n offered to prove that the last note 
was not paid at maturity, and that extra expense had been 
incurred in its collection. The court excluded this testimony, 
on the ground that this defense was inconsistent with the 
other defenses interposed. This ruling was error. The de- 
fense which the appellant sought to establish grew out of 
the contract upon which the respondents relied for a re- 



IRWIN V. BUFFALO PITTS CO. 351 

July 1905] Opinion Per Kudkin, J. 

covery. It was not inconsistent with any admission in the 
answer. It certainly was not inconsistent with the defense 
that the action was not commenced within the time limited 
by law. Nor was it inconsistent with the defense that there 
had been a settlement between the parties. Disputed claims 
are often settled, and the settlement of a claim does not there- 
after preclude a party from showing that the claim had no 
existence in fact. Defenses are not inconsistent unless one 
of them is necessarily false. Nor was this defense incon- 
sistent with the defense that the machinery was sold under 
a different contract. The latter defense was simply an argu- 
mentative denial, and should have been stricken on motion. 
The defense, therefore, that one of the notes given for the 
machinery was not paid at maturity, and that extra expense 
was incurred in its collection, was not inconsistent with, or 
nullified by, any other defense interposed^ and the appellant 
should have been permitted to establish it, if it could. In 
Seattle Nat. Bank v. Carter, 13 Wash. 281, 43 Pac. 331, 48 
L- R. A. 177, the answer denied the transfer of the notes 
in suit to the plaintiffs, and thereafter, in three affirmative 
defenses, alleged such transfer affirmatively. These defenses 
were held to be inconsistent. In concluding its opinion, the 
court said : 

"In conclusion, this much at least must be demanded, that, 
however diversified the answers may be, they must all con- 
tain the essential element of truth, and if the admission of 
the truth of one answer necessarily proves the falsity of 
another, they cannot be allowed to stand, and the plaintiff 
will not be compelled to sustain the truth of an allegation 
the truthfulness of which is asserted by the defendant." 

In Davis V. Ford, 15 Wash. 107, 45 Pac. 739, 46 Pac. 393, 
it was held that a plaintiff could not, in one part of a reply, 
admit the execution of a contract, and deny it in another. 
What we have said we think sufficiently shows that these 
cases are not in point here. A defendant is certainly not 
precluded from showing that a plaintiff is mot entitled to 



852 IRWIN V. BUFFALO PITTS CO. 

Opinion Per RtmKiN, J. [39 Wash. 

recover under the contract upon which he relies, by claiming 
that the work was done under another or different contract. 

The next assignment of error relates to the exclusion of 
certain letters written by the appellant to one of the respond- 
ents' attorneys, and to the comments of the court thereon, in 
view of the fact that the letters were afterwards admitted by 
consent. These letters were not competent for any purpose. 
They simply stated the appellant's version of the agre^nent 
between the parties in relation to the commission for the sale 
of this machinery. Surely, it cannot be maintained that an 
attorney for collection is bound to enter into a controversy 
with a debtor over the merits of a claim in his hands for col- 
lection, or to deny any assertions made in relation thereto. 
Such an attorney has no authority to bind his client by an 
express admission, much less by an implied one, such as a 
neglect or failure to answer a letter. These letters were prop- 
erly excluded, and the comments of the court as to their 
competency could not be prejudicial error, whether the letters 
were afterwards admitted or not. 

The appellant further offered in evidence three letters writ- 
ten by the appellant to the respondent Irwin, and two letters 
from Irwin in reply. These letters were first received by 
the court, and then a controversy arose between the court and 
coimsel as to the purpose for which the letters were received, 
and their effect. Irwin was called as a witness in rebuttal, 
and testified that he never admitted that his firm was to 
collect tlieir commission out of the old machinery. He further 
admitted that he never answered the letters received from the 
appellant, which set forth that the agreement was as now 
contended by it. The utmost that is claimed for these letters 
is, that the respondents did not deny the claims therein set 
forth to tlie effect that they were to receive their commis- 
sion out of the old machinery. It is not claimed that the 
letters contained any express admissions inconsistent with the 
testimony of the witness, or that they impeadied him in any 
way. While the letters might be competent, independent, 



IRWIN V. BUFFALO PITTS CO. 353 

July 1905] Opinion Per Rudkii?, J. 

testimony in favor of the appellant, we do not think tiiey 
were competent for the purpose of impeachment or competent 
in rebuttal at all. Counsel offered them for the purpose of 
impeachment only, and contended that they were competent. 
The court determined otherwise, and we think rightly. The 
witness said that he never made any admissions, that he 
never answered the letters, and they showed nothing to the 
contrary. 

It is next assigned as error that the court sustained objec- 
tions to certain questions propounded to the witness Evans, 
who claimed to have made the special agreement with the 
respondents for the sale of the machinery to Berdan. The 
purport of these questions was, whether the witness would 
have made the sale had not the respondents agreed to take 
their commission out of the old madiinery, and what the wit- 
ness would have done, had they not so agreed. The con- 
tract must be established by what was said and done by the 
parties, and not by what either party would or might have 
done under a given state of facts. The objection was properly 
sustained. It is next assigned as error that the court ad- 
mitted testimony, over objection, showing what was done 
with the secondhand machinery after the sale to Berdan, 
This was clearly a proper circumstance to go before the jury. 

The next error assigned relates to an instruction given 
by the court on the question of settlement, as follows : 

"I instruct you that, if you find from the evidence that 
such a settlement was entered into, and that the settlement was 
full and fair, that the verdict should be for the defendant" 

The use of the words "full" and "fair" in this instruction 
is criticised by the appellant. There was no question of the 
fairness of the settlement, if any were made, involved in the 
case, and we do not think that the use of these words could 
prejudice the appellant. Furthermore, we have grave doubts 
whether there was any testimony in the case which warranted 
the submission of this question to the jury. 

2a-30 WASH. 



354 IRWIN V. BUFFALO PITTS CO. 

Opinion Per Rudkin, J. [39 Wash. 

It is next contended that the written contract between 
the parties only authorized cash sales. If that were true^ 
the acceptance by the appellant of machinery or anything 
else in lieu of cash, would be the equivalent of cash, so far 
as the respondents are concerned. Error is next assigned on 
the ruling of the court on the motion for a new triaL There 
was a direct conflict in the testimony as to the contract under 
which the machinery was sold, and the verdict of the jury 
upon that question is conclusive upon this court Error is 
assigned upon the refusal of the court to give certain instruc- 
tions requested by the appellant, but we think the instnio- 
tions given were full and fair, and substantially embodied 
the appellant's requests. We do not deem it necessary to 
reverse the judgment absolutely for error in excluding testi- 
mony, as the utmost that the proof offered could avail the 
appellant would be a deduction of ten per cent of the third 
note, or $95, from the amount of the verdict. 

The judgment is reversed, and if the respondents, within 
thirty days from the filing of the remittitur in the court 
below, file a release of the sum of $95 from the amount of 
the judgment, a new judgment shall be entered for the 
amount of the verdict, with interest from date of rendi- 
tion, less the sum of $95. If no such release is filed, the 
court below will grant a new trial. The appellant will re- 
cover its costs in this court. " 

Mount, C. J., Fullerton, Hadley, and Root, JJ., con- 
cur. 

Ceow, J., being disqualified, took no part. 



SMITH V. ST. PAUL ETC. R. CO. 355 

July 1905] Opinion Per Root, J. 



(No. 4968. Decided July 27, 1906.) I 89 866 

41 809 



A, L. Smith et ah. Respondents, v. St. Paul, Minneapolis 
& Manitoba Railway Company, Appellant} 

Eminent Domain — ^Damaging of Pbopxbtt — ^Rahjioadb — Construc- 
tion — Operation — Noises, Fumes, Smoke — Incidental Damages — 
Damage Arsque Injxtria. The word "damaged" as used in Const, 
art. 1, § 16, providing that private property shall not be damaged or 
taken without Just compensation having been first made, was not 
Intended to give a right of action where the injuries to property 
would otherwise have been damnum absque injuria, in an action 
against a natural person or private corporation; hence damage can 
be recovered for the operation of a railroad on its own nearby prop- 
erty only for such injurious physical effects as the jarring of the 
earth on the plaintiffs lots, casting soot and cinders thereon, or the 
emission of smoke physically affecting the property, and not for the 
usual noises and the emission of fumes, smoke or odors necessarily 
Incident to the operation of trains, not resulting from negligence; 
these being regarded as damnum absque injuria. 

Same — ^Accessirilitt of Cross-streets. Excavations by a railroad 
company, through cross-streets in the neighborhood, affecting the 
accessibility of the streets^ do not constitute an injury to plaintiff's 
property for which he is entitled to damages, where his property does 
not abut upon the street, although he may use said streets more 
than any one else, since his injury differs from that of the public 
only in degree and not in character. 

Appeal from a judgment of the superior court for Spokane 
county, Belt, J., entered June 29, 1903, upon the verdict of 
a jury rendered in favor of the plaintiffs, in an action for 
damages to property by the construction and operation of a 
railroad. Reversed. 

iV. J, Gordon and C. A. Murray, for appellant. 
Barnes & Latimer, 8, C. Hyde and W. F. Tovmsend, for 
respondents. 

Root, J. — ^Respondents are the owners of lots 7 and 8, in 
block 6, of Ide & Kauffman's Addition to Spokane, which 
lots face upon the north side of Bridge avenue, a public street 

1 Reported in 81 Pac. 840. 



e41^ 



856 SMITH V. ST. PAUL ETC. R. CO. 

Opinion Per Root, J. [39 Wash. 

sixty feet in width, having an east and west course* Said 
lots extend from said avenue northerly one hundred and 
seventeen feet along the line of Cannon street^ which is sixty 
feet wide, running north and south. Prior to this action 
appellant had constructed and was operating a railway line, 
which, for a distance of about a quarter of a mile to the east, 
and for a half mile to the west, of respondent's property, 
paralleled said Bridge avenue at a distance of sixty-three and 
one-half feet to the south thereof. In front of respondents' 
property, and for some distance on either side, there is an 
excavation or cut of some twelve feet in depth, in which 
appellant's railway track is laid. The nearest rail is one 
hundred and twenty-three and one-half feet distant from the 
nearest portion of respondents' property. Bespondents allege 
that the ringing of bells, the sounding of whistles, and other 
noise incidental to the running of trains upon this railway 
track, together with the smoke, fumes, soot, and cinders from 
the locomotives, and the jarring of the earth by passing trains 
and the excavations in cross-streets, have occasioned serious 
damage to their property and have materially reduced the 
market value thereof. They brought this action to recover 
said damages, basing their right of action upon that portion 
of § 16, art. 1, of the state constitution, which reads as 
follows : 

"No private property shall be taken or damaged for pubho 
or private use witliout just compensation having been first 
made or paid into court for the owner." 

They recovered judgment in the lower oourt^ from which 
appeal is taken to this court. 

It is not contended that the noises or other annoyances 
complained of are other than those which are naturally and 
necessarily incident to the proper operation of the railway, 
and it is not contended that any or all of these things con- 
stitute a nuisance. But it is urged that their property is 
"damaged," within the meaning of that term as used in the 
constitution. This railway is built upon land purchased or 



SMITH V. ST. PAUL ETC. R. CO. 357 

July 1908] Opinion Per Root, J. 

condemned by the railway company, except where it crossee 
public streets. "No street is crossed at any point adjacent to 
respondents' property. It is contended, however, that, inasr 
much as appellant has made an excavation through the streets, 
which has impaired the accessibility of said streets, near re- 
spondents' property, they are injured thereby. 

^ Appellant contends that all of these injuries, complained 
of by respondents, are occasioned by results which are natur- 
ally and necessarily incident to the operation of the road, 
which is a legitimate business, and that they do not consti- 
tute damages such as are contemplated by the constitutional 
provision aforesaid. It is urged that, in so far as they are 
injurious to respondents at all, they are damnum- absque 
injuria. Appellant maintains that the constitutional pro- 
vision, supra, and similar provisions found in various state 
constitutions, were inserted, not with the intention of giving 
a cause of action for every injury which might occur, but 
to place public corporations upon a plane with private cor- 
porations and individuals, and to make such public corpora- 
tions liable under the same circumstances that would hold 
persons and private corporations liable. 

It seems to be conceded that, prior to the adoption of these 
constitutional provisions containing the word "damaged," 
or equivalent expressions, the word "taken" as found in most 
of the constitutions was not construed to give any right of 
action against states, counties, and cities, public or quasi 
public corporations, where no tangible property was phy- 
sically taken, even though the use of said property was ma- 
terially interfered with and its value depreciated. Several 
of the older states amended their constitutions by adding the 
word "damaged," and a number of the new states placed said 
word in their organic law at the time of its original adoption. 
Our attention has been called to this, or a similar provision, 
in the consitutions of the following states : California, Colo- 
rado, Georgia, Illinois, Missouri, Ifebraska, Pennsylvania, 
Texas, and West Virginia ; and we believe the same^ or similar 



358 SMITH V. ST. PAUL, ETC. R. CO. 

Opinion Per Root, J. [39 Wash. 

provisions, are found in the constitutions of Arkansas, Kesn- 
tucky, Montana, and the Dakotas. 

In California, Georgia, Illinois, Missouri, Pennsylvania, 
and West Virginia, the contention of appellant appears to be 
upheld, and damages seem not to be allowed where the same 
are consequential or incidental merely to the carrying on of 
a legitimate business. In Nebraska and Texas the courts 
evidently hold the other way. There are many cases holding 
that any obstruction to a public street in front of, or adjacent 
to, real property entitles the owner of said property to a right 
of recovery against the one causing said obstructions, even 
though they be used as a railway, viaduct, or for other legi- 
timate purposes. But the weight of authority appears to be 
against the right of a property owner recovering for dam- 
ages occasioned by the legitimate use by another of his own 
property, so long as said damages are not such as physically 
affect his property, or some right appurtenant thereto. This 
was the rule of law prior to the adoption of these constitu- 
tional provisions including the word "damaged," and there 
seems to be sound reason for the contention that this term 
was placed in new and amended constitutions so that public 
and quasi-public corporations should be held for damages 
upon the same grounds as others. 

Such seems to have been the view taken by this court in 
the case of Brown v. Seattle, 5 Wash. 35, 31 Pac 313, 32 
Pac. 214, 18 L. R. A. 161, where the following language 
was used : 

"The earlier constitutions of the several states in the Union 
contained, with but few exceptions, a provision that private 
property should not be taken for public use without just 
compensation. The constitution of the United States con- 
tains substantially the same provision, which was applicable 
to the territory. Under these provisions, however, owing to 
the interpretation put upon the word 'taken' by the courts of 
the several states, with the exception of the courts of Ohio^ 
great and manifest injury was constantly done by the states, 
counties and cities to the private citizen without any l^al 



SMITH V. ST. PAUL ETC. R. CO. 359 

July 1905] Opinion Per Root, J. 

means of reimbursement. The theory was that wherever the 
state, through its legislative acts, authorized any of its agents 
to make public improvements, so long as these agents carried 
on their work within the scope of their authority, and with- 
out negligence, they were liable to no one, whatever damages 
might accrue. A citizen was thus left without protection in 
all that large class of cases where, through some act done for 
the public benefit, or for a use public or quaH public, although 
no part of his tangible property was physically taken, the 
use or value of his property was palpably impaired, or was 
stripped of incidents comprised within the conception of 
complete property rights which brought to tho^e rights quite 
as much value as the mere possession of the property." 

In construing a word or expression of a statute or constitu- 
tion susceptible of two or more meanings, the court will give 
that interpretation most in accord with the manifest purpose 
of the statute or constitutional provision. Where the word 
or expression constitutes an amendment, the court will con- 
sider the old law, the mischief sought to be corrected, and 
the remedy. With all these in mind, the court will give the 
new term or language such construction as will effectuate the 
evident intention and purpose of the makers. Under the consti- 
tutions providing compensation for the taking of property, it 
was almost uniformly held that public corporations might in 
different ways greatly injure the property and property rights 
of others, but could not be held in damages unless there was 
an actual taking of some portion. The word "damaged" being 
employed to give relief to those thus affected by the actions 
of public or quasi-public corporations, it is argued that it 
should not be assumed that said word was intended to have 
any other and wider meaning than it then possessed as a 
well understood legal term. Ordinarily one may use his own 
property in any legitimate manner he chooses; and, prior 
to the employment of the word "damaged" in state consti- 
tutions, no such property owner was liable to any one else 
for any injuries consequent upon, or incidental to, such law- 
ful use of his own property. 



360 SMITH V. ST. PAUL ETC. R. CO. 

Opinion Per Root, J. [39 Wash. 

Applying to the constitutional provision in questicm the 
usual tests and rules, and having due consideration for the 
weight of judicial opinion, as we find it expressed by the 
courts that have passed upon this question, we are disposed 
to hold that the word "damaged," as used in our constitution 
does not give a right of action in a case where the injuries 
would have beenj in the absence of said word, damnum 
absque injuria in an action against a natural person or pri- 
vate corporation. 

It would seem to be only reasonable to suppose that per- 
sons acquiring property in a thickly settled conmiunity must 
have anticipated the use of neighboring property in a manner 
not always to be agreeable and pleasant. A person buying 
property in a growing city must be presumed to have done 
so for the benefits to come to him by reason of being a prop- 
erty owner in such a city. The presence and operation of rail- 
roads are necessarily attendant upon the growth and prosr 
perity of such a city as Spokane. Probably respondents would 
not have become property owners therein had it not been for 
the present and prospective railroad facilities of the city. As 
such purchasers and owners, they knew that more railways 
would be required as the city grew and became more im- 
portant. The very growth and development which made city 
property, as a whole^ more valuable and opportunities for 
business prosperity greater, required the building and opera- 
tion of more railway lines. 'Ko one could buy property in 
such a growing city without realizing that this would be a 
natural and necessary result. Where such new lines might 
be constructed, a person could not foretell. But he would 
know that they must be near other property, and that their 
operation, however legitimate and careful, must entail coQse- 
quential injuries upon the owners of such nearby property. 
Electing to purchase property in such a community where 
his property might profit by the industrial and commercial 
activities of others, it is but just to hold that, with the ad- 
vantages, he should also accept the burdens necessarily inci- 



SMITH V. ST. PAUL ETC. R. CO. QQl 

July 1905] Opinion Per Root, J. 

deaital thereto. If one resides on a parcel of city property, 
his neighbors on three sides may lawfully erect high build- 
ings for legitimate purposes which will entirely shut off 
access, light, and air from those three sides. This greatly 
reduces the value of his home. It makes it unpleasant and 
undesirable, increases his insurance rates, subjects him to 
unpleasant noises and disagreeable sights. But so long as 
these neighbors use their property lawfully and avoid crea- 
ting a nuisance;^ he has no right of action against them. So 
it is when nearby property is used in a proper manner for 
railway purposes. So long as such use does not affect the 
property of others in a physical manner to its detriment, the 
consequential injuries do not come within the meaning of the 
word "damaged," as used in the constitution — ^providing, of 
course, that a nuisance is not created. 

In the case at bar, appellant is operating its railway upon 
its own property except where the same crosses the public 
streets. No nuisance is alleged. Complaint is made of the 
ringing of bells, sounding of whistles, rumbling of cars, jar- 
ring of the earth, and the casting of cinders and soot upon, 
and smoke and fumes across, respondents' premises. They 
claim also to be injured by reason of the uncovered cuts 
through the cross-streets, and the wooden bridges over other 
of said cuts, which make the use of such streets more diffi- 
cult 

The jarring of the earth of respondents' lots and the cast- 
ing of soot and cinders thereupon, and the emission of smoke 
physically injuring property, are injurious physical effects 
to the corpus of respondents' property, which, we think, come 
within the scope of the term "damaged," as used in the con- 
stitutional provision. If a railroad company cannot carry 
on its business upon its own 'property without necessarily 
disturbing the physical conditions of other property, it is 
evident that such company has not acquired sufficient prop- 
erty for the conduct of its business, and it should be required 
to pay such damages as the actual physical disturbance of 



362 SMITH V. ST. PAUL ETC. R. 00. 

Opinion Per Root, J. [39 Wash. 

the nei^boring property entails thereupon. But the ring- 
ing of bells, sounding of whistles, rumbling of trains, and 
other usual noises, and the emission of smoke^ gases^ fumes^ 
and odors are necessarily incidental to the proper operation 
of the road, and when not resulting from negligence, are such 
consequential injuries as must be held to have been antici- 
pated by any one acquiring property in or about such a city, 
and are regarded as damnum absque injuria. 

It is urged that tlie excavations made through the ctOBBr 
streets in respondents' neighborhood constituted an injury 
for which they are entitled to damages. We think not. If 
the railroad was constructed in the public street adjacent to 
respondents' lots, they would be entitled to recover whatever 
damages were occasioned thereby. This is upon the theoiy 
that every owner of property bordering upon the street has 
a right to access, light, and air therefrom, which right is an 
appurtenant to the land, and any physical impairment of that 
right is regarded as actionable. Such an injury is one pe- 
culiar to the land owner, and not shared in kind by others. 
But where the injury complained of is an obstruction, not 
adjacent to the land of the person in question, but to a street 
in the neighborhood which he uses, or might use, in common 
with the public in general, he has no right of action as an 
owner of injured property. That he may use the street more 
often than most or all others, makes a difference only in de- 
gree and not in character, and does not entitle him to damr 
ages by reason of injury to his property. 

The questions involved herein have been carefully consid- 
ered and passed upon by many courts ; and in view of the 
importance of said questions, we feel that we may very prop- 
erly set forth extracts from several of the opinions of these 
courts. In the case of Brown v. Seattle, supra, this court 
used tlie following language: 

"The makers of the Illinois constitution used tlie word in 
that instrument for some purpose. Other states changed 
their constitutions for substantially the same purpose^ They 



k 



SMITH V. ST. PAUL ETC. R. CO. 353 

July 1905] Opinion Per Root, J. 

took the new phrase subject to the general rule of construc- 
tion, that the adoption of constitutional or statutory language 
by one state from another adopts to some extent, at least, the 
construction put upon the borrowed language by the courts of 
the state from which it came. After almost twenty years of 
discussion and decision in Illinois and other states, we put 
the words 'taken or damaged' into our constitution, and they 
must have their effect." 

In view of the principle of construction thus recognized, 
it becomes important to see what the courts of Illinois hold 
upon this proposition. In the case of Aldrich v. Metropolitan 
etc. R. Co., 195 111. 456, 63 K E. 155, 57 L. E. A. 237, the 
supreme court of that state quotes approvingly from one of 
its former decisions, as follows: 

"The question then recurs, what additional class of cases 
did the f ramers of the new constitution intend to provide for 
which are not embraced in the old ? While it is clear that the 
present constitution was intended to afford redress in a cer- 
tain class of oases for which there was no remedy under the 
old constitution, yet we think it equally clear that it was not 
intended to reach every possible injury that might be oc- 
casioned by a public improvement. There are certain in- 
juries which are necessarily incident to the ownership of 
property in towns or cities which directly impair the value 
of private property, for which the law does not and never 
has afforded any relief. For instance, the building of a jail, 
police station, or the like, will generally cause a direct de- 
preciation in the value of neighboring property, yet that is 
clearly a case of damnum absque injuria. So as to an obstruc- 
tion in a public street. If it does not practically affect the 
use or enjoyment of neighboring property, and thereby impair 
its value, no action will lie. In all cases, to warrant a re- 
covery it must appear there has been some direct pliysical 
disturbance of a right, either public or private, which the 
plaintiff enjoys in connection wnth his property and which 
gives to it an additional value, and that by reason of such 
disturbance he has sustained a special damage witb respect 
to his property in excess of that sustained by the public gen- 
erallv. In the absence of any statutory or constitutional pro- 
visions on the subject the common law afforded redress in all 



864 SMITH V. ST. PAUL ETC. R. 00. 

Opinion Per Root, J. [39 Wafth: 

such cases, and we have no doubt it was the intention of 
the framers of the present constitution to require compensa- 
tion to be made in all cases where, but for some legislate 
enactment, an action would lie by the common law/* 

And then makes the foUoAving observations: 

^'That ease, ever since its decision, has been regarded as 
laying down the proper rule on the subject^ and is, we think, 
conclusive of the case at bar. Here there has been no direct 
physical disturbance of any rights public or private, which 
the plaintiff enjoys in connection with her property and 
which gives to it an additional value, whereby she has sus- 
tained a special damage in excess of that sustained by the 
public generally. The damages sued for are of the same 
kind and character as those sustained by the public £:enerally 
in the owership of property, wtich property may h^e beeJ 
lessened in value by the construction and operation of the 
road. Noise, the ob&truction of light and of view, are neces- 
sary incidents of the construction and operation of such roads, 
and if every property owner could recover in all such cases, 
the making of public improvements would become practically 
impossible. This road is not constructed along the street 
in front of the plaintiff's property, thus injuring or destroy- 
ing a public right which she enjoyed in connection with her 
property, but, as before said, it is constructed on its own 
land or right of way. Therefore, whAt the rights of an 
abutter would be in such a case it is not necessaiy to consider. 
In Illinois Central Railroad Co. v. Grahill, 50 111. 241, in 
speaking of the annoyances of running engines, the escape of 
steam, etc., near the plaintiff's premises, this court said (p 
244) : *Such consequences of the construction and use of 
railroads must be borne by all living near them, without com- 
plaint and without hope of redress, for they are inseparable 
from the purposes and objects of such structures, but that a 
recovery can and should be had for such damages as arise 
out of the careless and negligent acts of a railroad company 
in regard to any usual and necessary appurtenance to their 
road cannot be denied.' (City of Chicago v. Union Stock 
Yards, 164 111. 224.) A railroad constructed and operated 
bv authority of law cannot be a nuisance, and there was no 
ri2:ht of action at common law for the depreciation in value 
of property so caused. The company is liable for negligent 



SMITH V. ST. PAUL ETC. R. CO. 3g5 

July 1905] Opinion Per Root, J. 

or willful injury, as others are, but not for doing the things 
which the law authorizes it to do. Nor can we agree that 
the constitution of 1870 gives, or was intended to give, a 
remedy for all incidental losses, or for the depreciation of 
the value of property, caused by the construction and opera- 
tion of railroads in the vicinity, but as said in the Rigney case, 
it was intended only to restore a remedy which existed at 
common law but which had been denied by legislation and 
the constitution of 1848." 

In the recent case of Bennett v. Long Island R. Co. (X. 
Y.), 74 N. E. 418, the court of appeals of Xew York adopts 
the language of the appellate division of the supreme court as 
follows : 

"The rumble of trains, the clanging of bells, the shriek of 
whistles, the blowing off of steam, the discordant squeak 
of wheels in going around the curves, the emission of smoke, 
3oot> and cinders, all of which accompany the operation of 
steam cars, are undoubtedly nuisances to the neighboring 
dwellings in the popular sense, but, as they are necessarily 
incident to the maintenance of the road, they do not consti- 
tute nuisances in the legal sense, but are regarded as pro- 
tected by the l^slative authority which created the corpora- 
tion and legalized its corporate operations. Nor does the 
legal nature of such annoyances change as traffic increases 
them in volume and extent." 

And, after referring to certain peculiarities of the case, the 
court of appeals makes the following statement: 

"But underlying even these cogent considerations there is 
the basic distinction that when the legislature authorizes the 
operation of a steam surface railroad it impliedly sanctions 
and legalizes* those inconveniences and annoyances to others 
which are inseparable from the proper conduct of such an 
enterprise." 

In the case of Pennsylvania R, Co. v. Marchant, 119 Pa. 
St 541, 13 Atl. 690, 4 Am. St. 659, the supreme court, in 
an elaborate and instructive opinion, says : 

"No principle of law is better settled than that a man has 
the right to the lawful use and enjoyment of his own prop- 



/ 



366 SMITH V. ST. PAUL ETC. R. CO 

Opinion Per Root, J. [39 Wash. 

erty, and that if in the enjoyment of such right, without 
negligence or malioe, an inconvenience or loss occurs to hia 
neighbor, it is damnum absque injuria. This must be so, or 
every man would be at the mercy of his neighbor in the use 
and enjoyment of his own. . . . The necessities of a 
railroad company and the character of its business compel 
it to seek the heart of a great city. This is as much for the 
convenience of the public as for its own. Hence the trans- 
portation of passengers and freight as near to the center of 
a town as possible, is in the direct line of its duty, whether 
that duty be performed by a corporation or individual. It is 
a part of the lawful use and enjoyment of property, and, 
where it is done without negligence, entails no legal liability 
therefor. . . . We understand the word ^injury^ or (in- 
jured), as used in the constitution, to mean such a legal wrong 
as would be the subject of an action for damages at common 
law. For such injuries, both corporations and individuals 
now stand upon the same plane of responsibility. That I am 
correct in the meaning we attach to the word 'injured,' ap- 
pears abundantly by our own authorities. . . . The lan- 
guage of the constitution is not equivocal and is entirely free 
from ambiguity. The f ramers of that instrument understood 
the meaning of words, and many of them were among the 
ablest lawyers in the state. Two of them occupy seats upon 
this Ixjnch. Hence, w^hen they extended the protection of the 
constitution to persons whose property should be injured or 
destroyed by corporations in the construction or enlargement 
of their works, we must presume they meant just what they 
said ; that they intended to give a remedy merely for legal 
wrongs, and not for such injuries as were damnum absque 
injuria. Among the latter class of injuries are those whidi 
result from the use and enjo\Tnent of a man's own property in 
a lawful manner, without negligence and without malice. 
Such injuries have never been actionable since the foimdar 
lion of the world." • 

The same court, in Pennsylvania 22. Co. v. Lippincoti, 
116 Pa. St, 4T2, 9 Atl. 871, 2 Am. St. 618, said: 

'We agree, indeed, that if the ordinary and proper use of 
the railway is to be regarded as an element of damages^ as to 
a certain extent it Is in the case of a condemnation, the rule 
stated is the correct one ; but as this rule is not one of common- 



SMITH V. ST. PAUL ETC. R. CO. 357 

July 1905] Opinion Per Root, J. 

law but of statute, it cannot apply to lie case now being con- 
sidered: Railroad Co. v. Yeiser, 8 Penn. St. 366. Unless, 
therefore, the case can be brought within some statute, the rule 
by which damages are measured by advantages and disad- 
vantages ought not to have been adopted; for, as was said, 
in the case cited, per Mr. Justice Kogers, 4t is a principle 
well settled by many adjudicated cases, that an action does 
not lie for a reasonable use of one's right though it be to the 
injury of another. For the lawful use of his own property, 
a party is not answerable in damages, unless on proof of negli- 
gence.' How, then, we ask, can a lawful erection by the 
Pennsylvania Railroad Company, on its own ground, be the 
subject of damage to the adjoining land-owners ? And why 
may it not as put by the defendant's first point, operate and 
use, in a lawful manner, its Filbert street branch without 
subjecting itself to an action for daipage? It seems to be 
very clear that a private person could do with impunity, on 
his own property, just what the railroad company has done. 
He might build a house, and thus shut out his neighbor's 
view, light and air ; he might build an embankment, or run 
a road on or along his own line, and be liable for nothing 
as long as he used his house, embankment or road in a lawful 
manner, although in either case an injury may have been done 
to the adjacent property. Who does not know that even in 
the country no householder escapes injury and annoyance 
from clouds of dust raised in dry weather by the passage of 
teams over the conmion roads ? And in the cities this griev- 
ance is further aggravated by the intolerable noise occasioned 
by the use of stone pavements. Nevertheless^ we have yet to 
hear of a case where one lawfully using such road or street 
was held liable for the injury thus occasioned. When a com- 
pany takes, by its right of eminent domain, part of a tract 
of land, and the damage to the balance is to be measured 
by the advantage over the disadvantage resulting from the 
company's works, in such case, as we held, in Searle v. The 
Railroad Co., 33 Penn. St. 57, contingent and even imaginary 
damages may be considered by way of offset to the alleged 
advantages. But whilst this is so, such damages cannot be re- 
garded as a substantive claim." 

The supreme court of Georgia, in an elaborate opinion 
reviewing many authorities and bearing evidence of careful 



368 SMITH V. ST. PAUL ETC. R. CO. 

Opinion Per Rooi\ J. [39 Wash. 

consideration, among other things, in the case of Aiistin v. 
Augusta etc. R. Co., 108 Ga. 671, 34 S. E. 852, 47 L. R. A- 
755, says: 

^'In this sense^ and as a well-defined law term, it was used 
in the constitution to give the owner of private property 
compensation for the actionable wrong whereby his prop- 
erty had been damnified, but it did not give him compensa- 
tion for depreciation in value caused by any legal act; since 
in law sudi an act was innocent, and therefore harmless, or, 
if not actually harmless, 'damnvm absque injuria.' There 
ia nothing in the language of the constitution, or in the de- 
bates or in the proceedings of the convention, which shows 
any intent to enlarge its definition, or to make it mean more 
than it had always meant as a law term. Nor was this sen- 
tence framed with a view of changing the substantive law of 
damages, or of making that actionable which before that time 
had been, non-actionable. Rather, the purpose was, to make 
the law of damages uniform, so that a plaintiff could recover 
against a city or railroad under the same circumstances that 
would have authorized a reoovery against those not armed 
and protected by the power of eminent domain. . • . 
Properly conducted, decently appointed, and orderly man- 
aged stores, shops, factories, and business houses, erected 
in close proximity to residential quarters, frequently cause 
great depreciation in values ; in the popular sense they cause 
damage, but in such cases the annoyances, the inconveniences 
occasioning the loss in value, are not actionable, because they 
arise from lawful uses. The owners of these establishments 
are as much entitled to the use and enjoyment of their prop- 
erty as is the owner of the residence property reduced in value 
by their presence. The first occupier of land does not acquire 
the right to prevent his neighbor from erecting walls, digging 
excavations, erecting buildings, or engaging in manufactur- 
ing or mercantile business thereon, no matter how seriously 
such acts may depreciate the market price of adjoining prop- 
erty. Tf tlie acts cx)mplained of do not amount to a nuisance, 
there is neither legal nor moral wrong done to the plaintiff. 
. . . For a physical invasion or wrongful interference 
with property or its appurtenances, resulting in damage, the 
plaintiff may recover. Without some wrongful act on the 



SMITH V. ST. PAUL ETC. R. CO. 359 

July 1905] Opinion Per Root, J. 

part of the defendant she cannot recover, even though there 
is deterioration in the value of her property." 

As bearing upon the claim of damage on account of ex- 
cavating across neighboring streets^ the following three casee 
show the trend of judicial decision : 

Van De Vere v. Kansas City, 107 Mo. 83, 17 S. W. 695, 
28 Am. St. 396, wherein the supreme court of Missouri said: 

"What we do say is this, that he must show that the prop- 
erty itself, or some right or easement connected therewith, 
is directly affected, and that it is specially affected. • • • 
His property is not specially affected. If the plaintiff is 
entitled to damages in this case^ then compensation must be 
allowed for any depreciation in the market value of property, 
arising from the erection of a court house, jail, or other 
public building. The text-writers cited say such cases are 
not within the amendment, and to this we. agree." 

The case of Brown v. Board of Supervisors, 124 Cal. 274, 
67 Pac 82, where the supreme court of California spoke as 
follows : 

"The property which an abutting owner has in the street 
in front of his land is the right of access and of light and 
air, and for an infringement of these rights he is entitled to 
compensation. This right is peculiar and individual to the 
abutting owner, differing from the right of passing to and 
fro upon the street, which he enjoys in common with the 
public, and any infringement thereof gives him a right of 
action. . . . The provision in the constitutian invoked 
by them was inserted therein to provide for instances in 
which property was not taken from the possession of the 
owner, or into physical occupancy by the public, and applies 
only to such damages as may be recoverable under estab- 
lished rules of law. The damage which the appellants may 
sustain by reason of a diminution in value of their lands is 
not damage for which they are entitled to compensation." 

The opinion in the case of Oilhert v. Greeley etc, R, Co., 
13 Colo. 501, 22 Pac. 814, contains an able discussion of the 
subject, from which we present the following extracts: 

24— S9 WASH. 



370 SMITH V. ST. PAUL ETC. R. CO. 

Opinion Per Root, J. [39 WaslL 

"The corpus of his property is not alBFected by any physical 
contact with the raih'oad tracks, nor is any street or alley, 
80 far as the same borders on his premises, in any way inter- 
fered with. . . . One traveler has no more legal ground 
of complaint on account of an obstruction in the public high- 
way than others, unless he be entitled to use the highway at 
the point of such obstruction for a different purpose than 
other people, or has suffered some special injury therefrom. 
The fact that he may be more frequently inconvenienced 
thereby does not give a cause of action. . . . His dam- 
age, therefore, may or may not differ in degree. It certainly 
does not differ in kind from that of the general public. 
. . . The constitution of Colorado, article 2, section 15, 
provides ^that private property shall not be taken or damaged 
for public or private use without just compensation.' . . . 
Private property must be taken, or private property must 
be damaged, before a cause of action arises. The damage 
must be to the property, or its appurtenances, or it must affect 
some right or interest which the owner enjoys in connection 
with the property, and which is not shared with or enjoyed 
by the public generally. . . . While it is admitted that 
plaintiff's property is rendered less valuable by reason of 
such obstruction, yet, to bring the case within ihe meaning* 
of the constitution, it must also appear that he has some 
special private property, right or interest, as a private right 
of way or user, in Twelfth street, at the point of obstruction, 
other or different from the right or interest of the general 
public, and that such property, right or intere&t of plaintiff 
has been damaged for public use. Notwithstanding the broad 
terms of our constitution, and the unqualified expressions of 
certain judicial opinions, we are not prepared to say that 
whenever a depreciation in private property is caused by 
some public or private improvement the owner of the property 
thus depreciated may recover compensation against the party 
making such improvement. It is probable that, in conse- 
quence of every improvement resulting from new inventions 
or discoveries, the private property, rights or interests of 
some person or persons have been damaged or injuriously 
affected. In many instances the construction and operation 
of railroads have driven stage companies and post-chaises 
out of existence, and rendered the property invested therein, 
as well as such business, comparativelv valueless. ... It 



I 






SMITH V. ST. PAUL ETC. R. CO. 371 

July 1905] Opinion Per Root, J. 

may be susceptible of demonstration that every railroad com- 
pany running its trains across a street or public highway 
causes damage or inconvenience in a greater or lees degree 
to every traveler having occasion to use the street or high- 
way at the point of such crossing, as well as to every person 
owning or occupying real estate anywhere in the vicinity of 
such crossing; and yet there is no remedy for such damage, 
under ordinary circumstances, for the reason that as a general 
rule no one has any special, private property or interest in 
the public highway other or different from the general public, 
and the damage thus suffered is common to all having occa- 
sion to use the street or highway. In such case^ therefore, 
private property cannot be said to be taken or damaged for 
public usei, within the sense or meaning of the constitution. 
It is only when some specific private property, or some right 
or interest therein or incident thereto, peculiar to the owner, 
is taken or damaged for public or private use that the consti 
tution guarantees compensation therefor. City of Denver v 
Bayer, 7 Colo. 113; Railroad Co. v. Nestor ^ 10 Colo. 403 
Whitsett 17. Railroad Co., 10 Colo. 243 ; Rttde v. City of 8t 
Louis, 93 Mo. 408 ; Morgan v. Railway Co., 64 Iowa, 589 ; 
Shavbut 17. Railroad Co., 21 Minn. 502." 

' Lewis, Eminent Domain (2d ed.), § 236, says: 

"Every owner takes the chance of having the value of his 
property enhanced or diminished by the use made of sur- 
rounding property, and the character of the improvements put 
upon it. He has no cause of complaint on account of the 
nature of such uses or improvements, unless they amount in 
law to a nuisance. The grievances which lead to the insertion 
of the words damaged' or 'injured' in recent constitutions, did 
not consist in the fact that such damages as have just been 
referred to went without redress, but in the fact that, under 
the restricted interpretation put upon the word 'taken,' pri- 
vate property might be subjected to physical injuriesj and 
valuable rights appurtenant thereto or connected therewith, 
might be impaired or destroyed for public use without com- 
pensation. These words were not inserted for the purpose 
of preventing the public from doing what every private in- 
dividual may do without liability to his neighbor. They 
were not intended to confer a right of action for a use of 



372 SMITH V. ST. PAUL ETC. R. CO. 

Opinion Per Root, J. [39 Wash. 

property by the public, which a private individual mi^t 
make without legislative authority." 

In addition to the foregoing authorities, the following shed 
light upon the questions under consideration, viz.: Jordan 
V, Benwood, 42 W. Va. 312, 26 S. E. 266, 57 Am. St. 859, 
36 L. R. A. 519; Adams v. Chicago etc, B. Co., 39 Minn. 
286, 39 ]Sr. W. 629, 12 Am. St 644, 1 L. R. A. 493; CarroU 
V. Wisconsin Cent. B. Co., 40 Minn. 168, 41 K W. 661; 
Binard v. Burlington etc. B. Co., 66 Iowa 440, 23 N. W. 914; 
Dunsmore v. Central Iowa B. Co., 72 Iowa 182, 33 N. W. 
456; Hanlin v. Chicago etc. B. Co., 61 Wis. 515, 21 K W. 
623 ; Preshey v. Old Colony etc. B. Co., 103 Mass. 1 ; Colum- 
bia Delaware Bridge Co. v. Oeisse, 35 If. J. L. 558 ; Bese- 
man v. Pennsylvania B. Co., 50 N. J. L. 235, 13 Atl. 164; 
Bichei v. Metropolitan B. Co., L. R. 2 H. L. 198 ; Metropolis 
tan Board of Works v. McCarthy, L. R. 7 H. L. 256; Fobes 
V. Bome etc. B. Co., 121 K Y. 505, 24 K E. 919, 8 L. R. A. 
453 ; Decker v. Evansville etc. B. Co., 133 Ind. 493, 33 N. E. 
349 ; Werges v. St. Louis etc. B. Co., 35 La. Ann. 641. 

Tb sustain respondents' contention that each and every 
of the matters complained of constitutes a cause of action, 
would be to open the door to endless litigation over damages 
remote, vague, indefinite, and uncertain, and against corpora- 
tions and persons engaged in all lines of industrial activities. 
We believe this would be decidedly obnoxious to sound publio 
policy, and cannot believe the framers of the constitution, or 
the people in adopting it, ever intended such results^ 

The learned trial judge having made certain rulings in- 
consistent with the conclusion herein reached, and to the 
prejudice of appellant, the judgment of the superior court 
is reversed and the case remanded for a new trial. 

Mount, C. J., Csow, Rudkin, Fiili-ekton, and Hadlet, 
JJ., concur. 



JORDAN V. HUTCHINSON. 373 

July 1905] Opinion Per Hadlet, J. 

(No. 5695. Decided July 27» 1906.) 

J. Eugene Jordan, Respondent, v. Isaao P. Hutchinson 

et al.. Appellants} 

Appeal — Final Obdebs — Ordeb of Default. A refusal to vacate 
an order of default before final judgment is not final or appealable, 
and is reviewable on appeal from the final judgment. 

Judgment — ^Vacation — ^As Matteb of Right on Publication of 
Summons — ^Actions fob Recoveby of Land— Statutes — Constbuc- 
TiON. Bal. Code, § 5518, giving an absolute right to vacate a Judg- 
ment had upon the publication of summons in an action to recover 
the possession of land, has no application to a judgment In an action 
to set aside conveyances for fraud and subject land to the lien of 
judgments. 

Judgment — ^Vacation — Good Cause — Showing. Good cause for the 
vacation of a default judgment secured on publication of summons 
does not appear from the fact that defendant's place of residence 
might have been ascertained by the plaintiff, where plaintiff and his 
counsel made diligent effort to ascertain the same without success, 
and where defendant had actual knowledge of the pendency of the 
suit thirteen days before the default. 

Appeal from a judgment of the superior court for King 
county, Bell, J., entered January 4, 1905, upon overruling 
defendant's motion to vacate an order of default, in an action 
to subject lands to the lien of judgments. Affirmed. 

Byers & Byers, for appellants. 

Allen, Allen & Stratlon, for respondent. 

Hadley, J. — ^Respondent moves to dismiss this appeal. 
The notice of appeal states that the appeal is from the final 
judgment in the action, and also from an order entered prior 
to the final judgment The order mentioned was one denying 
a motion to vacate an order of default previously entered. 
The default order was entered April 22, 1904, and the order 
denying the motion to vacate the default was entered June 
25, 1904. Judgment in the cause was not entered until Janu- 

iReported In 81 Pac. 867. 



374 JORDAN V. HUTCHINSON. 

Opinion Per Hadlet, J. [39 WabIl 

ary 4, 1905, and the appeal notice was served on the 10th 
day of the same month. Respondent urges in support of 
the motion to dismiss the appeal that, if the refusal -to vacate 
the order of default was appealable, then it follows that the 
appeal was not taken in time, and that this court; i^ without 
jurisdiction. It is conceded that orders vacating default 
judgments are not appealable, under the decisions of this 
court; but it is pointed out that a refusal to vacate a final 
judgment by default is appealable. It is argued that, for 
the same reasons whidi make a refusal to vacate a final judg^ 
ment by default appealable^ a refusal to vacate an ordinary 
order of default entered before final judgment is also ap- 
pealable. We think, however, that> under our statute gov- 
erning appeals, the two cannot be classified as similar. A 
refusal to vacate a final judgment is a final order made after 
judgment, which affects a substantial ri^t, and is appeal- 
able, under Bal. Code, § 6500, subd. 7. A refusal to vacate 
a mere order of default is not a final order made after judg- 
ment, but is one made before judgment^ and subd. 1 of the 
section of the statute above cited expressly provides that the 
appeal from the final judgment shall bring up for review any 
order made in the same action before judgment. The appeal 
from the final judgment in this case therefore brings up for 
review the refusal to vacate the order of default, and the 
motion to dismiss the appeal is denied. 

Upon the merits of the appeal, the error assigned is that 
the court erred in denying appellants' motion to vacate the 
order of default, and in entering judgment for reepondent. 
The action was brought for the purpose of setting aside cer- 
tain conveyances of real estate as having been fraudulently 
made, and to subject the land to the lien of judgments held 
by respondent The service of process upon appellants was 
by publication of summons. They contend that, under Bal. 
Code, § 5518, they have the absolute right at any time within 
two years, to have an order vacating the judgment. The 
contention is based upon the following portion of said section : 



JORDAN V. HUTCHINSON. 375 

July 1905] Opinion Per Hadlet, J. 

^Wheii service of the notice is made by publication, and 
judgment is given for failure to answer, at any time within 
two years from the entry thereof, the defendant^ or his suc- 
cessor in interest as to the whole or any part of the property, 
shall, upon application to the court, or judge thereof, be 
entitled to an order vacating the judgment^ and granting him 
a new trial, upon the payment of the costs of the action/* 

Whatever may be said of appellants* argument if this were 
a case coming within the terms of said statute, it is, how- 
ever, sufBcient to say that the statute does not ^pply to this 
case. It relates alone to actions for the recovery of posr 
session of real property, and this is not such an action. 

Considering the application to vacate the default, with 
reference to either § 4880 or § 5091, Bal. Code, it will be 
observed that the former section provides that^ when the sum- 
mons is not personally served, a defendant shall "on appli- 
cation and sufficient cause shown," at any time before judg- 
ment, be allowed to defend; and the latter section provides 
that the court may, in its discretion, before final judgment, 
set aside any default upon affidavit showing good and suffi- 
cient cause. Has good and sufficient cause been shown here ? 
And has the court abused its discretion in refusing to vacate 
the default in this case ? One of the appellants made affidavit 
in supi)ort of the motion to vacate, that he resided in Boston, 
Massachusetts, when the summons was published; that his 
place of residence could have been discovered from the rec- 
ords of the auditor's office, or of the treasurer's office, of King 
county, and that respondent or his attorneys could have known 
the same by the exercise of ordinary diligence. The affidavit 
does not state that appellant had not actual knowledge of 
the pendency of the action in ample time to have appeared 
and defended the same. A counter affidavit made by respond- 
ent's counsel discloses that both respondent and his counsel 
made diligent inquiry to ascertain the address of appellants 
at the time the action was commenced, and that they were 
unable to discover it; that appellants had actual knowledge 



876 PRICE V. SEATTLE. 

Syllabus. [39 Wash. 

of die pendency of the action at least thirteen days prior 
to the entry of the default^ at which time they wrote a letter 
addressed to their attorneys in Seattle concerning the action; 
that the affiant saw the letter six days before the default was 
entered. These statements are not denied by anything ap- 
pearing in the record. The record shows no more than neglect 
on the part of appellants. We tlierefore think sufficient 
cause was not shown for opening the default, and that the 
court did not abuse its discretion in refusing to vacate it* 
Spokane Falls v. Curry, 2 Wash. 541, 27 Pac 477 ; Myers 
V. Landrum, 4 Wash. 762, 31 Pac. 33 ; Sanborn, Vail & Co. 
V. Centralia Fum. Mfg. Co., 5 Wash. 150, 31 Pac. 466; 
Haynes v. Schwartz Co., 5 Wash. 433, 32 Pac 220. 

Under the record before us, and within the authority of 
the statutes and decisions cited, the court did not err. The 
judgment is affirmed. 

Mount, C. J., Root, Ceow, Fui-leeton, and Rudkik, 
JJ., concur. 



(No. 6615. Decided July 28» 1906.) 



George D. Pbice, Respondent, v. The City of Seattle 

et al.. Appellants.^ 

Officebs — Removal — MuNicn»AL Corporations — Employees. In 
the absence of restraints, the power of appointment to an office for 
an indefinite term Implies the x>ower to remove. 

Same — ^Review by Courts. The removal of a municipal employee 
or officer holding an indefinite term, pursuant to the charter pro- 
visions therefor and approved by the civil service commission in the 
manner directed, is final and cannot be reviewed by the courts, where 
the charter authorizes the appointing power to make the removal 
upon the filing of a statement in writing of the reasons therefor, and 
provides for a hearing before the civil service commission, which 
has power to approve the removal or reinstate the employee. 

Same. The right to a hearing before an impartial board does not 
change the rule that the removal of a municipal officer efPected in the 
statutory manner is final and conclusive on the courts. 

iReported in 81 Pac. 847. 



I 



PRICE V. SEATTLE. 377 

July 1905] Opinion Per Rudkin, J. 

Appeal from a judgment of the superior court for King 
county, Bell, J., entered September 29, 1904, upon findings 
in favor of the plaintiff, granting a writ of mandate to compel 
the plaintiff's reinstatement as a city employee. Reversed. 

Scott Calhoun and 0. B. Thorgrimson, for appellants, coup 
tended, inter alia, that the power to remove is incident to the 
power of appointment, unless restricted by statute. Easson 
V. Seattle, 32 Wash. 405, 73 Pac. 496 ; Trainer v. Board of 
Auditors, 89 Mich. 162, 50 IsT. W. 809, 15 L. R. A. 95; 
Shurtleff v. United States, 189 U. S. 311, 23 Sup. Ct. 535, 
47 L. Ed. 828 ; People ex rel. Brennan v. Scannell, 70 JT. T. 
Supp. 983 ; State ex rel, Brandt v. Thompson, 91 Minn. 279, 
97 N. W. 887. The courts have no power to review a re- 
moval made in conformity with the statutes. State ex rel, 
Churchill V. Hay, 45 Neb. 321, 63 N. W. 821 ; Patton v. 
Vaughan, 39 Ark. 211; State ex rel. Keech v. Thompson, 
26 Hun 28 ; State ex rel. McReavy v. Burke, 8 Wash. 412, 
36 Pac. 281; Kimball v. Olmsted, 20 Wash. 629, 56 Pac 
377 ; State ex rel QUI v. Byrne, 31 Wash. 213, 71 Pac. 746; 
State ex rel. Howlett v. Cheetham, 19 Wash. 330, 63 Pac 349. 

P. D. Hughes and Fenley Bryan, for respondent, to the 
point that there must be a "cause" for the removal, and it 
must be one touching the qualifications of the officer, cited: 
State ex rel. Hart v. Common Council, 53 Minn. 238, 55 
N. W. 118, 39 Am. St. 595 ; State ex rel. Haight v. Love, 
39 N". J. L. 14; People ex rel. Munday v. Fire Com'rs, 72 
N. Y. 445; State ex rel. Gill v. Common Council, 9 Wis. 
229 ; State on Complaint of Kennedy v. McGarry, 21 Wis. 
502. 

RuDKiN, J. — On and prior to the 31st day of October, 
1903, the plaintiff was employed as a driver in the street 
department of the city of Seattle, in the classified civil sei> 
vice. On the above date he was removed by the city super- 
intendent of streets for insubordination and neglect and re- 



378 PRICE V. SEATTLE. 

Opinion Per Rudkin, J. [39 Wash. 

fusal to perform his duty. The superintendent thereupon 
filed with the civil service oommission a statement in writing, 
showing his reasons for the removal, as required by § 12, of 
art. 16, of the city charter. Within ten days thereafter the 
plaintiff demanded an investigation by the civil service com- 
mission, and such demand was complied with. After such 
investigation the oommission certified its findings and decision 
to the appointing oflicer, confirming his action in directing the 
removal. The regularity of these proceedings is not ques- 
tioned. This action was brought against the city and the 
civil service commission for a mandatory injunction to rein- 
state' the plaintiff in his former office or employment The 
plaintiff had judgment below, and the defendants appeal. 

It is the contention of the respondent that he was discharged 
for a refusal to perform mor^ than eight hours labor for one 
day^s pay. His particular contention is that the city required 
him to feed, clean, and care for the horse driven by him, 
mornings and evenings, in addition to his eight hours of 
labor, performed on the public streets. The appellants con- 
tend that it is customary for drivers and teamsters to care 
for their horses mornings and evenings, and that sudi re- 
quirement on the part of the city is not in violation of the 
charter provision that eight hours shall constitute a day's 
labor. The appellants further contend that the respondent 
was removed in the manner pointed out by the charter, and 
in strict compliance therewith, and that the courts cannot 
review the action of the appointing officer and the civil ser^ 
vice commission in this proceeding. In view of the conclusion 
we have reached on the second question presented by tie 
appellants, we do not deem it necessary to construe the pro- 
vision of the city charter which declares that, "Eight hours 
shall constitute a day's work and no employee of the city, 
on city works, shall be required to work longer than eight 
hours for one day's pay." 

In the absence of restraints imposed by the constitution 
or by statute, the power of appointment implies the power 



PRICE V. SEATTLE. g^g 

July 1905] Opinion Per Hudkiw. J. 

of removal, where no definite term is attached to the office 
or employment by law. People ex rel. Griffin v. LcUhrop, 
142 N. Y. 113, 36 N. E. 805; Easson v. Seattle, 32 Wash. 
405, 73 Paa 496. Again, where a statute or municipal 
charter provides that a municipal officer may be removed for 
cause, the proceedings for removal are judicial in their nature, 
and, by the weight of authority, subject to review in the 
c»urts^ by proper proceedings. Under which class do the 
provisions in question fall ? Section 8 of art. 14 of the charter 
of the city of Seattle, provides as follows : 

"Unless otherwise provided by law or this charter, each 
officer, board or department authorized to appoint any deputy, 
clerk, assistant or employee shall have the right to remove 
any person so appointed." 

Section 12 of art. 16 of the same charter provides as 
follows : 

"Every officer or employe in the classified civil service 
3hall hold office until removed or retired. Any officer or 
employe in such service may be removed by the appointing 
power only upon the filing with the commission of a state- 
ment in writing of the reasons therefor. Any officer or em- 
ploye so removed may within ten days after his removal 
demand an investigation. The commission shall forthwith 
make such investigation and its finding and decision shall 
be certified to the appointing officer, and if the removal is 
not sustained thereby, the officer or employe so removed shall 
at once be reinstated. Ifothing in this article shall limit the 
power of any officer to suspend without pay a subordinate 
for a period not exceeding thirty days. In the course of any 
investigation, each member of the commission shall have 
power to administer oaths, and the commission shall have 
the power to require the attendance of any officer or employe 
or other person and the production of books and papers rele- 
vant to such investigation. The provisions of this section 
shall not apply to the removal of the chief of police." 

Had the charter stopped with the requirement that the 
appointing power should file with the commission a statement 
in writing showing the reasons for removal, the charter would 



380 PRICE V. SEATTLE. 

Opinion Per Rudkut, J. [39 Wash. 

in all respects be analogous to Bal. Code, § 108, which pro- 
vides that, 

"Whenever the governor is satisfied that any officer not 
liable to impeachment has been guilty of misconduct or mal- 
feasance in office or is incompetent, he shall file with the sec- 
retary of state a statement showing his reasons with his order 
of removal," 

and in such cases we are satisfied that the courts are without 
jurisdiction to inquire into the question of removal, except 
possibly the legal sufficiency of the reasons assigned. O'Dowd 
V. Boston, 149 Mass. 443, 21 N. E. 949. 

The fact that another provision of the charter permits the 
officer or employee to demand an investigation at the hands 
of the civil service commission, and empowers the commis- 
sion to reinstate him, does not, in our opinion change the 
rule. In adopting the civil service system for the purpose 
of securing, and retaining in its employ, competent servants, 
we are of opinion that the people of Seattle deemed it wise 
to impose no restrictions upon the power of removal, except 
a requirement that the reasons shall be stated in writing, and 
an investigation allowed by an impartial board of its own cre- 
ation. In adopting a charter it was competent for the city 
to adopt the first rule above stated, which admits of a removal 
at pleasure and without cause, or the second, which only 
admits of a removal after a hearing and upon cause shown. 
In our opinion the city adopted a course midway between 
the two. It doubtless considered the requirement that the 
reasons for the removal should be stated in writing and made 
a matter of record a sufficient safeguard against improper 
removals, and an investigation by the civil service commission 
a sufficient protection to the discharged employee. Whether 
such provisions are wise or unwise is not for the considera- 
tion of this court Where the system extends to a large num- 
ber of employees, the right of every discharged employee to 
resort to the courts would doubtless impair, in a measure, 
the usefulness and efficiency of the system itself. In any 



KRISCH V. INTER-STATE FISHERIES CO. 33^ 

July 1905] SyllabuB. 

event, we do not think that the framers of the charter ever 
intended that the courts should be resorted to in such cases. 
When, therefore, the appointing power files with the civil 
service commission a statement in writing shoving good and 
sufficient reasons for the removal^ and after investigation the 
commission confirms the action of the appointing power, 
the removal is complete, and any further appeal must be to 
public opinion. Kimball v, Olmsted, 20 Wash. 629, 56 Pac 
377; State ex rel. Gill v. Byrne, 31 Wash. 213, 71 Pac. 746. 
The judgment of the court below is therefore reversed, 
with directions to dismiss the action. 

Mount, C. J., Fulleeton, TTadley, Root, and Ceow, 
JJ., concur. 



(No. 6508. Decided July 28, 1906.) 

F&ANK Kbisgh, Respondent, v. The Inteb-Statb Fishbeies 

CoMPAKY, Appellant} 

COBFOBATIONS — STOCK — ^Re-I88UB — SaLE BY CJOBPOBATION — BENEFITS 

Received — iUltba Vibes. Where a promoter subscribed for stock in 
a corporation, which was issued to him as fuHy paid up, upon a 
nominal consideration, and he donated it to the corporation, whose 
trustees authorized its sale, the corporation may sell and re-issue 
It as fully paid up to an innocent purchaser at 10 i>er cent of its 
par value, and after receiving the benefits of the sale, the defense 
of ultra vires is not available. 

Same — ^Pbaud — Sale of Stock — False Repbesentatioxs — ^Laches 
OF PuBCHASEB — ^Means OF INVESTIGATION NoT OPEN. One who Is in- 
duced to purchase stock in a corporation through the false repre- 
sentations of its treasurer as to its assets, debts, and business, is 
not, as a matter of law, chargeable with notice of the fraud, nor 
guilty of laches in failing to discover it during three months service 
with the corporation, where the means of information were not open 
to him, but were fraudulently operated by the corporation, and its 
chief business was to make fraudulent sales of its own stock. 

Appeal — ^Review — ^Evidence — ^Habmless Ebbob. In a case tried 
de novo on appeal, incompetent evidence will be disregarded and its 
admission is not ground for reversal. 

iReported in 81 Pac. 855. 



882 KRISCH V. INTBR-STATB FISHBRIES CO. 

Opinion Per Rudkin, J. [39 Wash. 

Appeal from a jud^nnent of the superior court for King 
county, Honorable W. H. White, Judge pro tempore, entered 
August 8, 1904, upon findings in favor of the plaintiff, after 
a trial before the court without a jury, in an action for de- 
ceit Affirmed. 

H. E. Foster, for appellant. 
WUlett & yf\llett, for respondent. 

RuDKiN, J. — On the 16th day of November, 1903, the 
plaintiff in this action purchased from the defendant, throu^ 
one Casedy, its treasurer and general manager, five thousand 
shares of the capital stock of the defendant^ and paid therefor 
the sum of $500. On the same day the plaintiff also entered 
into a contract with the defendant, through the same officer, 
by the terms of which the plaintiff entered the employ of the 
defendant and was to receive for his services the sum of $50 
per month in cash, and four hundred shares of the capital 
stock of the company, at an agreed valuation of ten cents per 
share. The plaintiff continued in the employ of the defendant 
under this contract until the 24th day of February, 1904^ 
and received in all twelve hundred shares of the capital stodc 
of the company, in part payment for his three months' ser- 
vices. 

The plaintiff alleges in his complaint, which consists of 
two causes of action, that he was induced to purchase the 
stock and enter into the contract of employment by the false 
and fraudulent representations of the defendant, through its 
said treasurer and general manager. The substance of these 
representations was as follows : That the defendant had sold 
fourteen thousand dollars worth of its capital stock, and with 
the proceeds had acquired* property of th^ aggregate value 
of $13,050; that the defendant was not indebted to exceed 
the sum of $180; that the business of the defendant for the 
SIX months preceding the 16th day of November, 1903, had 
been on a paying basis ; that the defendant had $400 in cash 



KRISCH V. INTBR-STATB FISHERIES CO. 333 

July 1905] Opinion Per RuDKm, J. 

in its troasuiy, and that the defendant was on a dividend 
paying basis, had an established tradei^ etc The complaint 
further averred that all these representations were f alse^ and 
known to the defendant to be false ; lliat the plaintiff believed 
them to be true, and ifelied upon them, and that he investi- 
gated the affaii^ and Qondition of the defendant company so 
far as lay within his power before he purchased the stock 
or entered its employ. The complaint further averred that 
the stock was of no value whatever, and prayed judgment 
against the defendant for the sum of $620, with interest 

The answer admitted the corporate existence of the de- 
fendant^ the purchase of the five thousand shares of the capi- 
tal stock by the plaintiff, and the contract of employment 
under which twelve hundred shares of the stock were received, 
but denied each and every othec allegation of the complaint. 
The action was tried before the court without a jury. The 
court f oimd the facts substantially as alleged in the complaint ; 
found that all the representations were made as alleged, that 
the value of the defendant's property did not exceed the sum 
of $2,400, that the corporation, was in debt to exceed $1,500, 
that the defendant had no established trade or business, and 
was not^ and had nevoid been, upon a paying basis, that the 
business' of the defendant was carried on at a loss and foi' 
the sole purpose of deceiving intending investors in its stock, 
and that the stock was utterly valueless. The court further 
found that all representations made were false, and were 
known by the defendant to be false; that they were made 
for the purpose of deceiving the plaintiff and inducing him 
to purchase the stock and enter the employ of the defendant ; 
that the facts were particularly within the knowledge of the 
defendant's manager and not open to the plaintiff ; that such 
means of information as were open to the plaintiff were 
fraudulently operated by the defendant; that the plaintiff 
did not learn of the true state of affairs touching such rep- 
resentations until a day or two before the bringing of the 



384 KRISCH V. INTER-STATE FISHERIES CO. 

Opinion Per Rudkin, J. [39 Wash. 

action. The court reiuiered judgment as prayed in the com- 
plaint, and thd defendant appeals. 

Since the QOimnenoement of this action in the court below 
a receiver has been appointed for the appellant corporation. 
The receiver has applied for leave to intervene in this court, 
in order that he may move to dismiss the appeal. In view 
of the ooncluaion we have reached on the merits of the cas^ 
we will not gasa on this application, and the same is denied 
pro forma. 

The first assignment of error is that the coanplaint does 
not state sufficient facts^ because (1) the appellant could not 
lawfully traffic in its o^vik stock; (2) the respondent pur^ 
chased the stock at ten per cent of its face value, and was 
in the employ of the appellant for three months, and was 
therefore chargeable with notice of the financial affaii^ and 
business of the appellant; and (3) the respondent did not 
act with due diligence. At the organization of the corpora- 
tion the entire capital stock was aubscribed by, and issued 
to, the promoter^ as fully paid up, though the con3ideration 
for such subscription was little more than nominal. Five 
hundred and seventy thousand shares were thus issued to 
the treasurer Caaedy, five hundred and fifty thousand of 
which were by him donated to thie corporation. The trusr 
tees authorized a sale of this stock, anid a part thereof came 
into the handsr of the respondent under the circumstances 
already stated. Assuming, without deciding, that a corpora- 
tion cannot traffic in its own stock in this statei, we do not 
think tlie rule was violated in this case. Whatever the rights 
of creditors might be as between, the corporation and the sub- 
scribers, this stock was fully paid up and the corporation 
will not be heard Xp gainsay it. The cdrporation lawfully 
became the owner of this stock and had a right £o sell or 
re-issue it. Furthermore, after receiving the benefits of the 
sale of the stock, the defense of vltra vires is not available. 
Tootle V. First Nat. Bank, 6 Wash. 181, 33 Pac. 345; Allen 
V, Olympia Light & Power Co,, 13 Wash. 307, 43 Pac 55; 



KRISCH V. INTER-STATE FISHERIES CO. 385 

July 1905] Opinion Per Kubkin, J. 

Pronger v. Old Nat. Bank, 20 Wash. 618, 56 Pae. 391; 
Graton & Knight Mfg. Co. v. Eedelsheimer, 28 Wash. 370, 
68 Pac. 879. 

The respondent was not> as a matter of law, chargeable 
with notice of the fraudulent acts and conduct of the ap- 
pellant and its authorized agent, and was not guilty of laches 
in failing to discover the fraud or prosecute his action sooner, 
xmder the facts and circumstances found by the court. 

It is next assigned as error that the court admitted in- 
oompetent testimony. The case was tried without a jury, 
and is triable de novo in this court. After rejeteting the in- 
competent testimony, if any, sufficient remains to sustain the 
findings of the court. 

The failure to grant a nonsuit or to render a judgment for 
the appellant has already been answered by what we have 
said as to the sufficiency of the complaint. The record before 
us affords abundant evidence that the chief business of the 
appellant was to make fraudulent sales of its own stock by 
means little less than criminal. Its other business was a 
mere ruse and pretense to enable it the more easily to cheat 
and defraud. It would be a grave reproach to the law should 
this court declare that there is no redress for such wrongs. 

There is no error in the record, and the judgment is 
affirmed. 

Mount, 0. J., Fullebton, Hadley, and Ceow, JJ., 
concur. 

EooT, J., having been of counsel for interested parties, 
took no part 



386 COATS V. SEATTLE ELECTRIC CO. 

Opinion Per Mount, C. J. [39 Waah. 

(No. 5451. Decided July 29. 1906.) 

Abthub W. Coats, Appellant, v. Seattle Electric 

Company, Respondent} 

Street Railways — Injury to Person on Track — Contributory 
Neolioence. The driver of a wagon, which was struck by a street 
car, was gu)lty of contributory negligence, and a nonsuit is properly 
directed, where on meeting an approaching car he looked back and 
saw another car coming from behind on the opposite track fifty or 
sixty yards away, but nevertheless turned out upon such track with- 
out looking to see where the car was, and was struck before he had 
time to get oft the track. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered July 13, 1904, upon granting a 
nonsuit^ dismissing an action for personal injuries sustained 
by the driver of a wagon struck by a street car. Affirmed. 

Wootev & Welch, for appellant* 

HicgheSj McMicken, Dovell & Ramsey, for respondent. 

Mount, C. J. — Action for personal injuries. The plain- 
tiff was nonsuited below, on motion of the defendaYit at the 
dose of plaintiff's evidence. The facts as shown by the record 
are substantially as follows: The respondent operates a 
double line of street railway, on Jackson street^ in the city 
of Seattle. Tliis street runs east and west, and was paved 
with lumber between the outer rails of the two tracks. The 
remainder' of the street, on each side of the railway line, was 
very muddy, almost impassable, so that teams traveling' along 
the street used tlie portion occupied by the railway. 

On the evening of December 14, 1903, at about 6:30 
o'clock, tlie appellant was driving an express wagon drawn 
by one horse, east on this street, between Twentieth and 
Twenty-first avenues. He was following the line of track on 
tlie north or left hand side of the street. Just as he passed 
Twentieth avenue, he saw a car coming toward him from 

iReported in 81 Pac. 830. 



COATS V. SEATTLE ELECTRIC CO. 337 

July 1905] Opinion Per Mount, C. J. 

the east, on the track on which Ke was traveling. He looked 
back and saw another car comins: behind him, on the south 
or right hand track. This last mentioned car was fifty or 
sixty ya:rds away. The distance of the car in front is not 
mentioned, but plaintiff says: 

"I had to get out of the way, and when I saw it on the 
track, and just as I had pulled out on to the other track, 
why, the other one struck me, and I don't remember anything 
about it" 

The night was very dark, but there were* street lights at 
the street intersection^. Appellant had used this street be- 
fore, and had always driven on the street car tracks. He 
was about one-third of the way between Twentieth and 
Twenty-first avenues when he turned to cross the track. At 
the time he turned to cross the track he did not look to see 
where the car was which was coming behind him. This car 
struck his wagon in the rear, and injured the appellant quite 
severely. Appellant heard no bells or gongs 80un4ed. 

The appellant wti^f the only witness who testified as to the 
manner in which the accident occurred. One witness, who 
was a passenger on the car which caused the injury, and who 
was standing on the rear platform, stated that the car was 
running at the time not less than twenty-five miles per hour, 
and that he heard no bell sounded. Another witness who 
was on the same car said the car was running very fast, faster 
than usual and there was no gong sounded. The whole of the 
evidence upon the question of negligence of respondent is 
very slight; but, assuming for the purposes of this case^ that 
there was sufficient to go to the jury because of the ex- 
cessive rate of speed of the car and because no bells were 
sounded, yet the respondent's own evidence shows clearly, and 
beyond question, that he was grossly negligent in driving his 
horse and wagon directly in front of the car which injured 
him. He knew the car was coming from behind and was 
near to him, yet he did not look to see where it was, and 
just as he pulled on to the track, and before he had time to 



NMO 111, 



888 I-BB V. NORTHERN PAC. R. CO. 

Citations ol Counsel. [39 Wash. 

get off, it struck his wagon. If he had looked he could have 
seen that the car was upon him, and that he could not cross 
the track to the right without imminent danger. This case 
is substantially the same as Criss v. Seattle Electric Co,,, 
38 Wash. 320, 80 Pac. 525. The lower court properly 
directed a nonsuit. 

The judgment is affirmed. 

Ceow, Rudkin, Fullerton, Hadley, and Root, JJ., 
concur. 



(No. 6368. Decided July 29, 1906.) 

James Lee, Appellant, v. Nokthern Pacific Railway 

Company et al.. Respondents} 

Mabteb and Sebvant — ^Negligence — ^Assumption of Risk — ^Hauit 
nro Hand-Oar Behind Tbain. A bridge carpenter of six months ex- 
perience in railroad work who undertakes to "hook on" or haul a 
band-car behind a freight train by hand, assumes the risk of being 
jerked off the car, as an open and apparent one, although he acts 
upon the orders of his foreman^ under earnest protest against so 
doing, and upon assurances that It was safe; since the undertaking 
was so extremely hazardous as not to justify his reliance upon the 
master's superior knowledge or to forego the risk of discharge on 
disobedience of the order. 

Appeal from a judgment of the superior court for King 
county, Morris, J., entered April 26, 1904, upon the verdict 
of a jury rendered in favor of the defendant by direction of 
the court, dismissinff an action for personal injuries sustained 
in hauling a hanxi-ear behind a freight train. Affirmed. 

Walker & Munn^ Robert Welch, and R. W, McClelland 
(George H. Walker, of counsel), for appellant. It is only 
in very rare instances where contributory negligence and as- 
sumed risk are questions of law. McQuillan v. Seattle, 10 
Wash. 464, 38 Pac. 1119, 45 Am. St 799 ; Graham v. Me- 

1 Reported in 81 Pac. 834. 



LEE V. NORTHERN PAC. R. CO. 889 

July 1905] Opinion Per Root, J. 

Neill, 20 Wash. 466, 65 Pae. 631, 72 Am. St. 121, 43 
L. R. A. 300; Steele v. Northern Pac. R. Co., 21 Wash. 287, 
57 Pac 820 ; Hencke'v. Bahcock, 24 Wash. 556, 64 Pac. 755 ; 
Jordaoh v. Seattle, 26 Wash. 61, 66 Pac. 114; Mischke v. Se- 
attle, 26 Wash. 616, 67 Pac 357; Christianson v. Pacific 
Bridge Co., 27 Wash. 582, 68 Pac 191 ; Crooker v. Pacific 
Lounge etc. Co., 34 Wash. 191, 75 Pac 632 ; Jancko v. West 
Coast Mfg. & Inv. Co., 34 Wash. 556, 76 Pac 78; Currans 
V. Seattle etc. B. & Nav. Co., 34 Wash. 512, 76 Pac 87; 
Allen V. Northern Pac. B. Co., 35 Wash. 221, 77 Pac 204; 
Thoreeen v. La Crosse City B. Co., 87 Wis. 597, 58 N. W. 
1051, 41 Am. St. 64. The servant's duty to obey was im- 
perative, and he had a right to rely upon assurances of safety. 
Keating v. Pacific Steam Whaling Co., 21 Wash. 415, 58 Pac 
224 ; Christianson v. Pacific Bridge Co., supra; Coan^. Marl- 
borough, 164 Mass. 206, 41 K E. 238 ; Oreen v. Western 
American Co., 30 Wash. 87, 70 Pac. 310; Goldthorpe v. 
Clark'Nickerson Lum. Co., 31 Wash. 467, 71 Pac 1091; 
Orout V. Tacoma Eastern B. Co., 33 Wash. 524, 74 Pac 665 ; 
Slack V. Harris, 200 111. 96, 65 K E. 669 ; Illinois Steel Co. 
V. Byska, 200 111. 280, 65 N. E. 734 ; Malott v. Hood, 201 
HI. 202, 66 K E. 247; Thomas v. Baleigh etc. B. Co., 129 
N. C. 392, 40 S. E. 201 ; Thompson, Adm'r v. Chicago etc. 
IB. Co., 14 Fed. 564; Atchinson etc. B. Co. v. Bancord, 66 
Kan. 81, 71 Pac 253; Gulf etc. B. Co. v. Nev/man (Tex. 
Civ. App>.), 64 S. W. 790; International etc. B. Co. v. Oait- 
anes (Tex. Civ. App.), 70 S. W. 101; Bane v. Erwin, 172 
Mo. 306, 72 S. W. 522 ; Illinois Steel Co. v. Schymanowski, 
162 111. 447, 44 N. E. 876; Chicago etc. B. Co. v. Lundr 
Strom, 16 Neb. 254 20 K W. 198, 49 Am. Eep. 718. 

James F. McElroy and B. S. Grosscup, for respondents. 

Root, J. — ^Appellant was working for respondent railway 
oomi»ny, along its line, as a bridge carpenter, and had been 
so doing for a period of six months prior to the accident here- 
inafter mentioned. On the 5th day of December, 1901, while 



390 LEE V. NORTHERN PAC. R, CO. 

Opinion Per Root, J. [39 Wash. 

engaged as aforesaid with a crew of men under the company's 
foreman, respondent Hemdon, near a place called Deming, 
appellant and said crew were directed by the foreman to get 
upon a hand-car and "hook on" to the rear of the caboose of 
a freight train, to be hauled to Sedro-WooUey, another sta- 
tion on said railroad line. The "hooking on" was by means 
of two men on the hand-car catching hold of the rear of the 
caboose with one hand and holding to the handle bar of the 
hand-car with the other, and thereby pulling said hand-car 
along behind the train. When the foreman told appellant 
to do this, the latter, suspecting it to be dangerous, earnestly 
protested against so doing; but being assured that it was safe, 
and that it was necessary in order to reach Sedro-WooUey in 
time, as required by the company, he complied with said 
order. While they were so "hooked on" and being drawn 
along by said freight train, appellant was^ by the motion of 
said train, "jerked or hurled" from the hand-car to the 
ground, sustaining serious injuries. He brought this action 
to recover damages therefor. The first trial resulted in a 
verdict in his favor. A new trial was granted. Upon the 
second trial, at the close of appellant's case, a challenge to 
the evidence, and a motion for judgment in favor of de- 
fendants, were interposed and sustained by the court. From 
this judgment appeal is taken to this court. 

Appellant's counsel argue, with exceptional ability, that 
the case was one for a jury, and cite numerous decisions in 
support of their contention. Many of these cases, however, 
involved questions of contributory negligence rather than as- 
sumed risk. Theoreticallv there is a clear distinction, betwewi 
these defenses. Practically, there is sometimes a marked 
difference and sometimes not The case at bar involves a 
question of assumed risk. The law in this state is firmly 
established to the effect that a servant assumes the risk of 
obvious and apparent dangers attendant upon his work. Whwi 
appellant was told to "hook on" to the caboosei, did he know, or 
by the exercise of ordinary intelligence and observation oould 



LEE V. NORTHERN PAC. R. CO. 391 

July 1905] Opinion Per Root, J. 

he have known, that there was danger, in so doing, of serious 
injury ? If this be answered in the affirmative, then it must 
be held that he assumed the risk o{ that danger. 

It apfpbars from the evidence that; appellant had been work- 
ing for respondent company as bridge carpenter along its 
railway line, for six months prior to this accident He had 
done similar work elsewhere to at least some extent. Six 
months' experience along a railway line in opepation would 
afford any person of ordinary int€dligence a general knowledge 
of the movements of freight trains thereupon. The cars upon 
such a train are connected in such a manner that there is 
necessarily much "bumping'' and "jerking" as the train is 
in motion. It is scarcely too much to say that this is a 
matter of common knowledge. It is certainly well known 
to those working upon or about railway lines where such 
trains are frequently passing. Such persons could not avoid 
perceiving these facts by the common, ordinary use of their 
natural faculties. Under the undisputed evidence of this 
case, it must be presumed that appellant knew of this "bump- 
ing" and "jerking," As his own arms and body were to 
form the connection between such train and the hand-car, 
he would know that these irregular movements of the train 
would frequently occasion sudden and great strains, and tend 
to pull him from the hand-car. This danger would be obvious 
to any one of ordinary perception. In the remarks of the 
trial court, in passing upon the challenge and motion for 
judgment, we find the following apt observations: 

"He knew just as well as Mr. Herndon knew, just as weU 
as anybody could know, what the palpable and ordinary re- 
sult would be of a man using himself as a human coupling 
pin. It seems to me there cannot be any escape from it, that 
the ordinary and usual thing would be just exactly what has 
happened in this case, that somewhere along on the route of 
travel of that hand-car and that freight train, that there would 
be a sudden diminution of the speed or a sudden increasing 
of it, or some jar, or something of that kind, that would put 
him in a position of great danger." 



892 LEE V. NORTHERN PAC. R. CO. 

Opinion Per Root, J. [39 Wash. 

The force of these suggestions must readily appeal to one's 
reason. Appellant may not have known just how he would 
be injured, or whether or not he would for a certainty meet 
with a catastrophe on that trip. But as a man of ordinary 
intelligence, familiar in a general way witii the movements of 
freight trains and hand-cars, he did know that he was court- 
ing danger every moment he permitted his body to serve as 
a car-coupler while the train was in motion. The probabilily 
of serious injury was apparent at all times. 

It is not a case of relying upon the superior knowledge 
of the master. However much the master or foreman knew 
about this danger, and however many assurances of safety 
he may have given, the fact remains that the danger was 
open, apparent, and obvious to appellant In his complaint^ 
appellant speaks of this service as "very hazardous." It 
would seem that no one could conceive of it as, being other- 
wisa It also appears from the complaint that the foreman's 
reason for having the men "hook on" to the freight train was 
to get to Sedro-WooUey more quickly. This would indicate 
an understanding, such as any one might naturally have^ that 
a freight train would travel more rapidly than a hand-car. 
The greater the speed of the train, the more rapid would be 
♦he movements of the handle bar on the hand-car, the more 
pronounced the "bumping" and "jerking" of the cars^ and the 
greater the danger to the human coupling link. A moment's 
contemplation of these matters could not fail to impress ap- 
pellant with the dangers of his undertaking. That he under- 
took this task under the orders of the foreman does not change 
the rule of law. A servant is always supposed to be working 
under orders of the master — actual or implied. Neither does 
the case come within the rule applicable where the servant, 
relying upon a promise to repair or correct a dangerous situ- 
ation, acts upon the definite, distinct orders of the master 
at the time, and is injured while so doing. 

It is argued that appellant mi^t have been, and probably 
would have been^ discharged if he had not obeyed the fore- 



LEE V. NORTHERN PAC. R. CO. 393 

July 1905] Opinion Per Root, J. 

man's oammand. Such is always the position of a seirvant. 
He has his choice of assuming the obvious dangers of 
the work and getting the compensation for his labor, or of 
refusing to do the work under the existing conditions and 
running the risk of being discharged. The law does not com- 
pel him to work for any certain person, or to obey any orders. 
But if he elects so to do, he thereby subjects himself to the 
law applicable to the statiLS he thereby creates. The assump- 
tion of the risk of open and apparent dangers is imposed by 
law upon one occupying that status. The facts established 
by the evidence in this case are such that we do not think 
any reasonable mind can believe appellant not to have real- 
ized that he was running the risk of great danger when he 
^liooked on" to the train. In fact, his complaint alleges 
that he "suspected" danger and protested against the under- 
taking. In the light of all these facts, the action of the trial 
court in sustaining the challenge to the evidence and in grant- 
ing judgment for defendant was correct. The case is con- 
trolled by principles recognized and established ii^ this state 
by many decisions of this court Week v. Fremont Mill Co., 
3 Wash. 629, 29 Pac. 215 ; Jennings v. Tacoma, R. & Motor 
Co., 7 Wash. 275, 34 Pac 937 ; Olson v. McMurray Cedoft 
Lumber Co., 9 Wash. 500, 37 Pac. 679 ; Bullivant v. Spo- 
kane, 14 Wash. 577, 45 Pac 42; Hoffman v. American 
Foundry Co., 18 Wash. 287, 51 Pac 385; Anderson v. 
Inland Telephone etc. Co., 19 Wash. 575, 53 Pac 657, 41 
L. E. A. 410; Brotvn v. Tabor Mill Co., 22 Wash. 317, 60 
Pac 1126; French v. First Avenue B. Co., 24 Wash. 83, 
63 Pac 1108; Danuser v. Seller & Co., 24 Wash. 565, 64 
Pac 783 ; Bobare v. Seattle Traction Co., 24 Wash. 577, 64 
Pac 784; Bier v. Hosford, 35 Wash. 544, 77 Pac. 867; 
Woods V. Northern Pac. B. Co., 36 Wash. 658, 79 Pac 309, 
Had the case gone to the jury a verdict favorable to de- 
fendants would have been the only one legally possible: A 
verdict in favor of plaintiff upon such evidence could not be 
legally upheld. As a matter of law, the evidence defeated 



894 CARLSON V. WHITE STAR S. S. CO. 

Syllabus. [39 Wash. 

plaintiffs right of recovery. There was consequently no 
logical or proper course for the trial court other than that 
adopted. 

The judgment of the superior court is affirmed. 

Mount, C. J., Ceow, Eudkin, and Fullekton, JJ., 
concur. 



(No. 6596. Decided July 29, 1905.) 

E. L* Cablson et al.. Respondents, v. The White Stas 

Steamship Company, Appellant} 

Shipping — Ownership of Vessel — ^Evidence — Name of Company — 
Variance. In an action against a steamship company, a prima facie 
case of ownership of a vessel is shown by answers to interrogatories, 
and by certified copies of records from the United States custom 
office, showing that she was registered as owned by the company, 
and by an admission that she had ever since been operated by the 
company; and any variance therein by the omission of the word 
"The" in the corporate name of the company is immaterial. 

Same — Negligence — Common Undertaking — Injury to Servant 
op Independent Contractor — ^Master and Servant — ^Vice Princh'al. 
The owner of a ship whose crew is engaged with the servants of a 
lighterage company in unloading lumber, is engaged in a common 
undertaking, and owes the duty to exercise care in its part of the 
work; and it is liable to the servants of the lighterage company for 
negligently sending down a heavy stick of timber, by shoving it 
through a porthole by hand to be received in a narrow place by 
an insufficient number of men, where machinery and appliances were 
available for handling the same with safety. 

Same — Concurrent Negligence of Independent Contractor. In 
such case, the negligence of the lighterage company in not employing 
a sufficient number of men does not release the ship owner from 
liability for its own negligence. 

Same — Master and Servant — ^Vice Principal. The third officer 
of a vessel in charge of unloading lumber is a vice principal, and 
his negligence in conducting the work must be imputed to the master. 

Same — Contributory Negligence. Where servants of a lighterage 
company were working in a narrow place, receiving lumber from a 
vessel, and had no voice in the matter of how it was to be unloaded, 

1 Reported in 81 Pac. 838. 



CARLSON V. WHITE STAR S. S. CO. 395 

July 1905] Opinion Per Root, J. 

they were not guilty of contributory negligence in attempting to 
handle, as best they could, a big stick sent down without notice in 
an improper manner against their protest, and which was caught 
and thrown about in a violent manner that they could not have 
anticipated. 

Appeal from a judgment of tiie superior court for King 
county, Griffin, J., entered December 13, 1904, upon findings 
in favor of the plaintiffs, after a trial on the merits before 
the court without a jury, in consolidated actions for personal 
injuries received by employees of a lighterage company in 
unloading lumber from a ship. Affirmed. 

Richard 8axe Jones, for appellant. 

Morris, Southard & Shipley, for respondents. 

EooT, J. — Two cases are consolidated for the purposes of 
this appeal. Kespondents each brought suit against appellant 
for damages resulting from personal injuries sustained at 
the same time, while on a scow upon which appellant was 
discharging lumber from its steamship "Oregon," in the road- 
stead off Xome, Alaska. The case was tried in the sujxjrior 
court before the judge without a jury, and resulted in a 
judgment in favor of each respondent From each of said 
judgments^ appeal is taken. 

The material facts are about as follows : A lighterage com- 
pany w^s to receive the cargo of lumber from the "Oregon." 
Said lumber was being discharged upon a lighter or scow 
some two miles from the shore. Respondents were employed 
by the lighterage company and were working upon its said 
lighter. Appellant's officer in diarge of the work of unload- 
ing, feeling that the same was not being done rapidly enough, 
placed two of the ship's crew upon said lighter to help receive 
the cargo. These men received lumber and piled it at one 
end of the lighter while respondents received and piled lum- 
ber at the other end. Each party so piled said lumber toward 
the middle of the lighter. At length there remained only a 
space of four to six feet unoccupied near the center of the 



396 CARLSON V. WHITE STAR S. S. CO. 

Opinion Per Root, J. [39 Wash. 

SCOW in which respondents were working. At this juncture, 
the men on the ship put out a heavy timber of green fir, ten by 
ten inches square and eighteen to twenty-two feet in length. 
It was so put out through the porthole, about seven feet 
above the deck of the lighter, being handled by eight men 
under the direction of the ship's third oflSoer, in charge of 
said work. Kespondents remonstrated against the timber 
being shoved down by the men, as it was too heavy for them 
to handle. But this remonstrance was unheeded. The tim- 
ber was pushed upon the lighter and one end fell close to 
the ship's side. As the waves of the ocean raised and lowered 
the lighter, this end of the timber caught under the edge of 
one of the steel plates on the ship's side which caused the 
other end of the timber to be thrown high into the air and 
to fall upon the lighter — ^this being repeated several times — 
striking against and falling upon respondents, causing the 
injuries complained of herein. The ship was provided with 
steam winches, block and tackle, and all appliances sufficient 
to handle such timbers readily and with safety 

Xumerons errors are assigned, but appellant groups them 
in three propositions: (1) That there was no proof of owner- 
ship of the vessel, and no proof of negligence on its part; 
(2) that respondents were employed by an independent con- 
tractor and appellant owed them no duty; (3) that respond- 
ents were guilty of contributory negligence. 

As to the ownership, respondents submitted to appellant 
several interrogatories, some of which, with the answers 
thereto, were as follows: 

"Interrogatory Xo. 5. — During the month of August, 1903, 
the time the alleged cause of action set forth in plaintifiTs 
complaint accrued, if at all, was not the steamship Oregon 
being operated under said register of Aug. 21, 1900, and 
was she not then documented in the United States Customs 
IIouso at Port Townsend as being owned by the White Star 
Steamship Company ? Answer. The steamship Oregon is be- 
ing o])erated and has been operated ever since the 21st day of 
August, 1900, under a registry certificate received from the 



CARLSON V. WHITE STAR S. S. CO. 397 

J1U7 1905] Opinion Per Root, J. 

United States Oastoni House at Port Townsend, and is docie 
mented as being owned by White Star Steamship Company 
and was so during the month of August, 1903. 

"Interrogatory No. 7. — During the* month of August, 1903, 
did not the White Star Steamship Company, by its officers 
and agents receive money for and issue transportation tp 
passengers from Seattle to !N'ome and from Nome to Seattle ? 
Answer. Yes." 

There was introduced in evidence a certificate of the deputy 
collector of customs at Port Townsend, as follows: 

"Certificate of ownership of vessel. United States Customs 
Service, Port of Port Townsend, Collector's office, May 5, 
1904. 

"I hereby certify that according to the records of this 
office the screw steamer called the ''Oregon" (19485) of 
Seattle, tonnage 1642, was registered at this office, August 
21, 1900, and the following were her owners, viz.. The White 
Star Steamship Company a corporation organized under the 
laws of the State of Washington and there is no mortgage 
or lien on record against said vessel in this office. 

"Given under my hand, and seal of office this 5th day of 
May, 1904, 11 A. M. Chas. Miller, Dep. Collector." 

Underneath the signature^ in apparently the same hand* 
writing, are the words: 'TEleoords don't show a change in the 
above described ownership." A certified copy of the affidavit 
of Sol. G. Simpson, president of White Star Steamship Com- 
pany, filed for the purpose of having the "Oregon" reg- 
istered, was also introduced. This affidavit recites that the 
"Oregon" was owned by White Star Steamship Company. 
Said Simpson verifies the answer herein as president of White 
Star Steamship Company. 

This and other evidence we think establishes at least a 
prima facie case as to ownership in this appellant. Tf there 
be a variance as to the word "The" as found in the title of 
appellant's corporate name, we deem it insufficient to justify 
a reversal ; and we do not think the prima facie case is over- 
come otherwise. 

To the contention that respondents were employed by an 



398 CARLSON V. WHITE STAR S. S. CO. 

Opinion Per Root, J. [39 Wash. 

independent oontractor and that appellant owed them no 
duty, it may be conceded that there is no relation of master 
and servant alleged as between appellant and respondents, 
and it is true that respondents were working for somebody 
else. But appellant's ship crew and respondents were en- 
gaged in a common undertaking. In such a case, each party 
owes the other the duty of exercising ordinary care and 
prudence. When there are two practicable methods of doing 
his part of such work, one dangerous and the other safe as 
to the other party, a person who deliberately chooses the 
dangerous method and thereby injures the other party is 
guilty of negligence and liable for the results thereof. At 
the time of this accident, respondents were standing in a 
narrow space between the two piles of lumber. An un- 
usually large and heavy stick of timber was shoved out of the 
ship. Appellant's crew had control of the manner of putting 
out said stick of timber. Instead of using the machinery 
and appliances which were available and capable of handling 
said timber, safely, they pushed the same out by hand, and 
let it drop with one end so near the ship that the catastrophe 
above mentioned occurred. The crew were acting under the 
direction of the ship's third officer. He was a vice principal 
of appellant, and his negligence must be imputed to it. 

It is urged that the lighterage company was negligent 
in not having a sufficient number of men upon the scow. Be 
that as it may, it does not relieve appellant from the conse- 
quences of its own negligence in the premises. To the argu- 
ment tliat respondents were guilty of contributory negligence^ 
we may say that we do not think the evidence establishes 
this. Respondents did not know that such a large timber 
was to bo unloaded until they saw it coming. They had no 
voice in the manner of its being discharged. Their protest 
was unheeded. They were in a narrow place. They under- 
took to handle it as best they could. That it would be 
dropped with one end so near the ship as to be caught and 
thrown about in a violent manner, was a matter which they 



/ 



STATE EX REL. PELTON v. ROSS. 399 

Aug. 1905] Syllabus. 

wrould not be expecting. We cannot say that they acted 
differently than men of ordinary prudence would have done 
under the same circumstances. 

Taking the evidence as a whole, we think it sufficiently 
appears that the negligence of appellant's agents constituted 
the proximate cause of respondents' injuries, and that it does 
not appear that negligence on their part contributed. 

The judgment of the lower court is affirmed. 

Mount, C. J., Cbow, Rudkin, Fxjxleeton, Hablby, and 
DuNBAB, JJ., concur. 



(No. 5720. Decided Au£ru8t 1, 1906.) 

The State of Washington, on the Relation of W. H* 

Pelton, Plaintiff, v. E. W. Koss, as Commissioner 

of Public Lands, Respondent, J. M. 

Coleman, Intervener} 

PBOHiBrrioN — Original Jubisdiction of Sufbeme Coubt — Man- 
date — State Land Commissioner — School Lands — Lease. The only 
function of an original writ of prohibition by the supreme court 
being the restraint of judicial or quasi-Judicial power, the supreme 
court has no original jurisdiction to issue a writ to prevent the state 
land commissioner from leasing certain lands and compelling him 
to advertise a lease of the same for sale at public auction, notwith- 
standing the writ was denominated a mandate, since it is in effect 
a writ of prohibition as to acts not Judicial in character. 

Same. The injunctive feature cannot be sustained as a necessary 
accompaniment of the main relief by mandamus. 

Public Lands — State Land Ck>MMissioNEB — ^Powebs — Lease — In- 
TEBEST OF APPLICANT — ^MANDAMUS. As the Commissioner of public 
lands acts upon applications to lease lands at his own discretion, and 
is under no obligation to offer lands for lease, mandamus to compel 
him to do so cannot be maintained by an applicant having no other 
Interest In the land than that of the general public, such applicant 
not being a party beneficially interested. 

Application filed in the supreme court June 10, 1905, 
for a writ restraining the commissioner of public lands from 

iReported in 81 Pac. 865. 



400 STATE EX REL. PELTON Y. ROSS 

Citations of Counsel. [39 Wash. 

executing a lease of tide lands^ and requiring him to submit 
the lease to sale at public auction. Writ d^ed. 

Hughes, McMichen, Dovell £ Ramsey and Vance & 
Mitchell, for relator. The supreme court has original juris- 
diction to grant the writ Jones t\ Reed, 3 Wash. 57, 27 Pac. 
1067; State ex reL Winsl(m v, Rogers, 21 Wash, 206, 57 
Pac 801. The relator's application gives him a definite 
interest apart from that of the public^ sufficient to maintain 
the proceedings. Birmingham v. Cheetham, 19 Wash. 657, 
54 Pac. 37 ; Tacoma v. Bridges, 25 Wash. 221, 65 Pac. 186 ; 
Rand, McNally & Co. v. Hartranft, 29 Wash. 591, 70 Paa 
77. His interest is at least equal to that of a bidder on a 
public contract Times Printing Co. v. Seattle, 25 Wash. 
149, 64 Pac 940 ; Times Printing Co. v. Everett, 9 WasL 
518, 37 Pac 695, 43 Am. St 865; Norton v. Roslyn, 10 
Wash. 44, 38 Pac 878 ; Moran v. Thompson, 20 Wash. 525, 
56 Pac 29. The statute contemplates an opportunity for 
public bidding. Laws 1899, p.77, §1;1 Bouvier Law Diet, 
239. The commissioner was not bound in law or morals to 
execute the lease arranged. Bal. Code^ § 2198. It was such 
an abuse of discretion to refuse the higher bid as to amount 
to fraud in law, for which we find a parallel in the tax valu- 
ation cases. Templeton v. Pierce County, 25 Wash. 377, 
65 Pac 553 ; Landes Estate Co. v. Clallam County, 19 Wash. 
569, 53 Pac. 670 ; Whatcom County v. Fairhaven Land Co., 
7 Wash. 101, 34 Pac 563 ; State ex rel White v. Board of 
State Land Corners, 23 Wash. 700, 63 Pac 532. A prefer- 
ence right to re-lease at the end of the term, at private sale 
and without competition, would violate § 11 of the enabling 
act, forbidding such lease for a period of more than five 
years, especially as applied to assignees. Hazelwood v. 
Regan, 95 Tex. 295, 67 S. W. 80. ft also grants special 
privileges. Const, art 1, § 13. Any disposition for less tiian 
the "full market value" is unconstitutional. Laws 1899, 



STATE EX REL. PELTON v. ROSS. 40I 

Aug. 1905] Citations of Counsel. 

p. 77, § 1 ; Const., art. 1, § 16 ; State ex rel, Bvissell v. Bridges, 
23 Wash. 82, 62 Pac. 449. 

The Attorney General and A. J. Falknor, Assistant, for 
respondeiut. The relator's remedy is by appeal. State ex rel. 
White V. Board of State Land Com'rs, 23 Wash. 700, 63 Pac. 
532 ; Wilkes v. Hunt, 4 Wash. 100, 29 Pac. 830. The su- 
preme court has no original jurisdiction of the proceeding. 
Winsor v. Bridges, 24 Wash. 540, 64 Pac. 780 ; State ex rel. 
Bussell V. Bridges, 30 Wash. 268, 70 Pac. 506; McNaught- 
Collins Imp. Co. v. Atlantic etc. Pile & Timber Preserving 
Co., 36 Wash. 669, 79 Pac. 484. An applicant for a lease 
acquires no vested rights in the land. Allen v. Forrest, 8 
Wash. 700, 36 Pac. 971, 24 L. E. A, 606 ; Frisbie v. Whit- 
ney, 9 Wall. 187, 19 L. Ed. 668; Campbell v. Wade, 132 
U. S. 34, 10 Sup. Ct. 9, 33 L. Ed. 240. The rights of im- 
provers are carefully guarded in this state. Wilkes v. Hunt, 
4 Wash. 100, 29 Pac. 830; Pearson v. Ashley, 5 Wash. 169, 
31 Pac. 410; Wilkes v. Davies, 8 Wash. 112, 35 Pac. 611, 
23 L. R A. 103 ; Hart Lumber Co. v. Rucker, 15 Wash. 456, 
46 Pac. 728. The market value is such a sum as the property 
is worth in the market to persons generally. Cent. Diet., 
"Markee Value;" Bullard v. Stone, 67 Cal. 477, 8 Pac. 17; 
Little Rock Junction R. Co. v. Woodruff, 49 Ark. 381, 4 Am. 
St 51 ; Wilder's Steamship Co. v. Brigantine Lurline, 11 
Hawaii 83 ; Sanford v. Peck, 63 Conn. 486, 27 Atl. 1057. 

Craves, Palmer, Brown & Murphy, for intervener. The 
supreme court has no original jurisdiction to grant a writ of 
prohibition, to the state land commissioner. State ex rel. 
White V. Board of State Land Com'rs, 23 Wash. 700, 63 Pac. 
532 ; Winsor v. Bridges, 24 Wash. 540, 64 Pac. 780 ; Mc- 
Naught-Collins Imp. Co. v. Atlantic etc. Pile etc. Co., 36 
Wash. 669, 79 Pac. 484 ; State ex rel Bussell v. Bridges, 30 
Wash. 268, 70 Pac. 506. The application does not confer 

96~a9 WASH. 



402 STATE EX REL. PELTON v. ROSS. 

Citations of Coanael. [39 Wash. 

any interest or right in the land. Allen v. Forrest, 8 Wash. 
700, 36 Pac 971, 24 L. R. A. 606 ; Frisbie v. Whitney, 9 
Wall. 187, 19 L. Ed. 688 ; Campbell v. Wade, 132 U. S. 34, 
10 Sup. Ct. 9, 33 L. Ed. 240 ; State ex rel Mariner v. Grey, 
4 Wis. 396 ; State ex rel. Mclndoe v. Commissioners of School 
etc. Lands, 6 Wis. 334; Gough v. Dorsey, 27 Wis. 119; 
Emblem v. Lincoln Land Co., 94 Fed. 710 ; Parker t?. Lyndy, 
7 Okl. 631, 56 Pac. 1082. There is a remedy by appeal, and 
mandamus will not lie. 3 Bal. Code, § 2142a, Laws 1901, 
p. 98 ; State ex rel. Barbo v. Hadley, 20 Wash. 520, 56 Pac 
29 ; State ex rel. Mclntyre v. Superior Court, 21 Wash. 108, 

57 Pac. 352 ; State ex rel. Vincent v. Benson, 21 Wash. 571, 

58 Pac. 1066; State ex rel. Fuller v. Superior Court, 31 
Wash. 96, 71 Pac. 722; State ex rel. Young v. Denney, 34 
Wash. 56, 74 Pac. 1021. A private citizen must show a spe- 
cial interest in order to enjoin a public official. Jones v. 
Reed, 3 Wash. 57, 27 Pac 1067; Birmingham v. Cheetham, 
19 Wash. 65*7, 54 Pac 37; Tacoma v. Bridges, 25 Wash. 
221, 55 Pac 181; Rand, McNally & Co. v. Hartranft, 29 
Wash. 591, 70 Pac. 77. The courts will not review the de- 
cision of the commissioner in determining the market value 
and the character of the improvements. 26 Am. & Eng. Ency. 
Law (2d ed.), 385; 23 Id., 371; Rogers v. DeCamhra, 132 
Cal. 502, 60 Pac 863, 64 Pac 894; DeCambra v. Rogers, 
189 U. S. 119, 23 Sup. Ct. 519, 47 L. Ed. 734; Wiseman 
V. Eastman, 21 Wash. 163, 57 Pac 398; Ramsay v. Tacoma 
Land Co,, 31 Wash. 351, 71 Pac 1024; Gale v. Best, 78 CaL 
235, 20 Pac 550, 12 Am. St. 44; Potter v. Randolph, 126 
Cal. 458, 58 Pac. 905; Peyton v. Desmond, 129 Fed. 1; 
Sage v. Maxwell, 01 Minn. 527, 99 N. W. 42 ; Graham v. 
Great Falls Water Power etc. Co. (Mont), 76 Pac 808; 
Robertson v. State Land Board, 42 Ore. 183, 70 Pac 614; 
McFadden v. Mountain View Min. £ Mill Co,, 97 Fed. 670; 
United States r. Mackintosh, 85 Fed. 333 ; Cooke v. Blnkeley, 
6 Kan. App. 707, 50 Pac. 981. The intervener's contract 
was accepted and complete. . Colorado Fuel & Iron Co. v. 



STATE EX REL. PELTON v. ROSS. 493 

Aug. 1905] Opinion Per Cbow, J. 

Board of Land Com'rs, 14 Colo. App. 84; 60 Pac. 367 ; Rilss 
V. Telfener, 166 U, S. 720, 17 Sup. Ct 998, 41 L. Ed. 1177. 
The statute authorizes the assignment 3 Bah Code, § 2161, 
Laws 1903, p. 116; 3 Bal. Code, § 2192, Laws 1903, p. 113. 

Ceow, J. — ^Relator, in his brief, says : "This is an appli- 
cation for a mandatory injunction, by which it is sought to 
have the respondent restrained from executing a certain con- 
tract to certain described lands, and requiring him to submit 
the lease of said lands to public auction, and dispose of the 
lease to the highest bidder therefor." From this statement 
it will be observed that, by this application, the primary re- 
lief sought is to prevent the state land commissioner from per- 
forming certain threatened acts, and thereafter to command 
him to do or perform certain other acts alleged to appertain 
to his oflBce or duty. 

On June 1, 1901, the State of Washington leased one 
hundred and twenty acres of school land in Kitsap county 
to one Robert J. Fisher, for five years, at an annual rental 
of $12. By subsequent assignments said lease was trans- 
ferred to J. M. Coleman, intervener herein. On January 
13, 1905, said J. M. Coleman, as such assignee, applied in 
writing for a re-lease of said land for five years from June 
1, 1905, at $12 per annum rental, stating that ho desired 
said lands for camping purposes. Although said application 
was made in the name of J. M. Coleman, it was signed by 
one L. J. Coleman, his son. L. J. Coleman claims to be the 
attorney in fact of said J. M. Coleman, and says that all 
acts performed by him, whether in his own name or in that 
of J. M. Coleman, in reference to said land, were performed 
as such attorney in fact. 

After said application for re-lease by said J. M. Coleman, 
the land commissioner's office caused said land to be ap- 
praised by one Charles A. Billings, who reported its annual 
rental value to be $30. On May 25, 1905, after the return 
of said appraisement, said L. J. Coleman made a second ap- 



404 STATE EX REL. PELTON v. ROSS. 

Opinion Per Cbow, J. [39 Wash. 

plication for a re-lease for five years, claiming improvements 
to the value of $120. With reference to said second applica- 
tion, respondent shows that, at the time of the filing of the 
same, an oiBFer of $30 annual rent was made by said L. J. 
Coleman to meet the appraised valuation, and the first year's 
rental was deposited. 

On May 31, 1905, the relator made written application 
to the state land commissioner to lease said land for five 
years, offering to pay a rental of one dollar per acre, or $120 
per annum. At the time of making this application, he also 
deposited with the state land commissioner $130, of which 
$120 was for the first year's rental and $10 to cover the 
exi)ense of advertising, etc. At the time of making said 
written application, relator also filed a written protest or 
statement, alleging that the improvements mentioned in the 
L. J. Coleman application had not been made in good faith ; 
that their erection had been commenced by him on Sunday, 
May 28, 1905, just prior to the expiration of the existing 
lease, for the sole purpose of enabling him, as prior lessee, 
to claim ownership of improvements upon said land and 
avail himself of the benefits of 3 Bal. Code, § 2160, Laws 
1899, p. 77. 

Respondent by letter promptly notified said L. J. Cole- 
man of said application and protest, and in so doing, said: 

"It will be necessary for you to meet this bid, under the 
interpretation of the law and the practice of this office* Upon 
receipt of an additional $90, which together with $30 now on 
deposit in this office, covers the amount of the bid of Mr. 
Pelton, also the reply to the protest, the matter will be given 
consideration, and you will^be notified of the result." 

Respondent also took the precaution of seeking and acting 
upon the advice of the attorney general. Said L. J. Cole- 
man immediately remitted to the state land commissioner 
the additional $90, and also filed his affidavit relative to the 
improvements, controverting the statements of relator, widi- 
out stating, however, when said improvements were made. 



STATE EX REL. PELTON v. ROSS. 495 

Aug. 1905] Opinion Per Cbow, J. 

Thereupon, after examination and consideration of the affi- 
davits and applications^ and having satisfied himself that 
said improvements were bona fide and such as entitled Mr. 
Coleman as a prior lessee to a preference right to re-lease, 
and deeming said annual rental of $120 sufficient and for 
the best interests of the state, respondent accepted said offer 
of $120, notified the attorney of said J. M. Coleman, and 
also the attorneys of said relator of his action, and caused 
to be recorded in volume 2 of the lease records of his office 
the following: "Kitsap County. Lots 1 and 2, Sec. 36, 
Tp. 21, 2 East, area 120 acres, name of lessee, J. M. Cole- 
man, postoffice address Seattle, Washington, date June 1, 
1905, amount per annum $120;" and indicated the lease as 
Xo. 7144, and caused original and duplicate leasee to be pre- 
pared ready for signature. 

Thereafter, but prior to the signing or delivery of said 
lease, on June 7, 1905, respondent received from one W. P. 
Trimble, not a party to this proceeding, the following tele- 
gram: "For five-year lease upon lots 1 and 2, Sec. 36, Tp, 
24, north of range 2 east, I will give $1,200 per year rent, 
and am prepared to raise this if it is met." On June 10, 
1905, said W. P. Trimble presented a written application to 
lease said property for five years at $1,200 per annum, ac- 
companying the same by a check for $1,200 for the first 
year's rental. In response to said telegram and application, 
respondent by letter notified said Trimble of his previous 
action in the premises and, inter alia, said: ^^The state feels 
that, since it has gone so far as it has in re-leasing, it cannot 
honorably recede from its position. We therefore respectfully 
return your check and reject your application. The office, 
however, will defer action for a reasonable time so that you 
may take such action as you wish." As the merits of this 
oajse will not be discussed, it is only justice for us to state 
that no suggestion of improper or fraudulent conduct on the 
part of the state land commissioner has been made by any 
of the parties; nor does anything appear which would sub- 



406 STATE EX REL. PELTON v. ROSS. 

Opinion Per Crow, J. [39 Wash. 

ject him to criticism, the entire record showing that he has 
constantly endeavored to act honestly and in good faith. 

The state land commissioner having given to said W. P. 
Trimble the notice above mentioned, and having temporarily 
preserved the status so that the parties might take any action 
they deemed proper, the relator, on June 23, 1905, filed this 
application and, on the hearing, said J. M. Coleman was, by 
consent, permitted to intervene. Respondent and the inter- 
vener have each submitted a demurrer and answer to the 
affidavit of relator. The demurrers present several questions, 
of which we will consider two: (1) That this court has no 
original jurisdiction of this proceeding; (2) that the relator 
has no right or authority to institute this proceeding. 

(1) While the relator seeks to invoke the original juris- 
diction of this court, and in so doing has ostensibly applied 
for a writ of mandate, we will first consider the objects 
sought to be obtained by said writ, in order that its true 
character may be determined. It is evident that the primary 
relief sought by relator would, if granted, in substance amount 
to an order either prohibiting or enjoining respondent from 
delivering the proposed re-lease to the intervener Coleman. 
In other words, it is sought by an original application here 
to secure some writ by which the re-leasing of said land to 
the intervener may be prevented. Unless some steps are 
taken to prevent such re-leasing, it would be idle to enter- 
tain the idea that this court could be called upon to issue 
a writ of mandamus directing the state land commissioner 
to advertise a lease of said land for sale at public auction 
to the highest bidder. Before any such order could be made^ 
the re-lease or pretended re-lease to Coleman should most 
certainly be disposed of or prevented. We therefore think, 
from the primary relief sought by relator herein, that the 
writ he asks is not one of mandamus^ but is in the nature 
of a writ of prohibition directed to the state land commis- 
sioner, forbidding him to do an act which is not judicial 
in its character. While it is true that this court has original 



STATE EX REL. PELTON v. ROSS. 407 

Aug. 1906] Opinion Per Cbow, J. 

jurisdiction to issue writs of prohibition in certain cases, 
it has been repeatedly held by us that the only function of 
such a writ is the restraint of unauthorized judicial and 
quasi-judicial power. State ex rel. White v. Board of State 
Land Com'rs, 23 Wash. 700, 63 Pac. 532; Winsor v. 
Bridges, 24 Wash. 540, 64 Pac. 780. The acts of respondent 
which relator seeks to prevent are not judicial or quasi- 
judicial, as in re-leasing to Coleman he acts only in a min- 
isterial or executive capacity. If the relator desires to pro- 
hibit or enjoin respondent from re-leasing to Coleman, and 
is entitled to do so, he should proceed in the superior court, 
as we are without original jurisdiction to grant such relief 
by a writ which in its effect would be a writ of prohibition, 
although relator undertakes to give it some other title. 

It is suggested by relator, however, that the original in- 
junctive relief sought here is merely a necessary accompani- 
ment of the main relief which can be granted by a writ of 
mandamus. We do not think this contention can be sus- 
tained. If we eliminate all idea of prohibitive or injunctive 
relief herein, it would be absurd for this court to issue a 
writ of mandamus against the state land commissioner, com- 
pelling him to lease lands which have already been re- 
leased or the title to which would be, at least, clouded by 
an existing pretended re-lease. As above suggested, relator 
primarily seeks to prohibit or enjoin respondent from doing 
certain acts. This he cannot do by a writ of mandamus. 
''Mandamus will not lie to undo what has already been done. 
Mandamus is a writ to compel and not to restrain action." 
19 Am. & Eng. Ency. Law (2d ed.), 743. See, Legg v. Mayor 
etc. of Annapolis, 42 Md. 203; Dunklin County v. District 
County Court, 23 Mo. 449. In the case last mentioned, which 
is quite similar in principle to this, the supreme court of 
Missouri says: 

"The writ of mandamus is in form a command in the 
name of the state, directed to some tribunal, corporation, or 
public officer, requiring them to do some particular thing 



408 STATE EX REL, PELTON v. ROSS. 

Opinion Per Cbow, J. [39 Wash. 

therein specified, and which the court has previously de- 
termined that it is the duty of such tribunals or other per^ 
son to perform. ... It does not lie to correct the 
errors of inferior tribunals by annulling what they have 
dene erroneously, nor to guide their discretion, nor to re- 
strain them from exercising power not delegated to them; 
but it is emphatically a writ requiring the tribunal or per- 
son to whom it is directed, to do some particular act apper- 
taining to their public duty, and which the prosecutor has 
a legal right to have done." 

"The writ of mandamus is the counterpart of the writ of 
prohibition, and is so designated in some states by statute. 
Mandamus is a legal remedy to compel action in accordance 
with legal duty, while prohibition is a legal remedy to 
restrain action in excess of legal authority." 19 Am. & Eng. 
Ency. Law (2d ed.), 721, 722. 

See, also, 23 Am. & Eng. Ency. Law (2d ed.), 196; BaL 
Code, § 5769; State ex rel. Rochford v. Superior Court, 4 
Wash. 30, 29 Pac. 764. Relator claims the action of re- 
sixDndent in re-leasing to the intervener is an act in excess 
of legal authority, and he seeks to prohibit such action. If 
it be conceded that he also seeks a writ to compel action 
by resix)ndent in accordance with an alleged legal duty, 
then in one and the same proceeding he is demanding from 
this court an original writ having two functions, one of which 
is tlie counterpart or converse of the other. We think this 
cannot be done. 

(2) It is contended by the respondent and the intervener, 
we think properly, that the relator has not a sufficient special 
interest in the land in controversy to authorize him to apply 
to this court for a writ of mandamus compelling respondent 
to offer a lease of said land for sale to the highest bidder at 
public auction. It is true, he has filed an application which 
has been rejected, and that respondent has in effect refused 
to offer a lease of said land for sale at public auction; but 
the mere filing of a written application for a lease of public 
lands does not confer upon the applicant any interest in the 



STATE EX REL. PELTON v. ROSS. 499 

Aug. 1905] Opinion Per Cbow, J. 

land other than that of the general public. Allen v, Forrest j 
8 Wash. 700, 36 Pac. 971, 24 L. R. A. 606; Frisbie v. Whit- 
ney, 9 Wall. 187; Campbell v. Wade, 132 U. S. 34, 10 
Sup. Ct. 9 ; State ex rel. Mariner v. Oray, 4 Wis. 380. 

Eelator contends that, under the constitution and laws of 
this state as applied to the facts herein, the intervener Cole- 
man has no preference right to a re-lease. While we now 
express no opinion as to Coleman's rights in that regard, still 
were we to concede the relator's position to be correct, what 
would be the result ? The land would be then subject to orig- 
inal lease only. 13al. Code, §§ 2149-2156. These sections im- 
X)ose upon respondent no immediate oflScial obligation or duty 
to offer such land for lease even after applications are made. 
He exercises his own judgment in the premises, acting as 
he deems advisable. Bal. Code, § 2150. When such lands 
have been actually offered, he may reject any or all bids. 
Bal. Code, § 2156. We fail to see, therefore, how the re- 
lator has secured any special right or interest in the land 
in question entitling him to a writ of mandamus, even though 
it be conceded that he is seeking relief by mandamus and 
not by prohibition. A writ of mandamus can be issued 
only on aflSdavit on the application of the party beneficially 
interest^. Bal. Code, § 5756; Spelling, Injunctions etc. 
(2d ed.), §§ 1369, 1370. 

It is ordered that the relator's application be dismissed. 

Mount, C. J., Eoot, Hadley, Rudkin, and Dunbar, JJ., 
concur. 

FuLLEBTON, J., took no part. 



410 BUCHANAN v. LABER. 

Opinion Per Hadlet, J. [39 Wash. 

(No. 6635. Decided August 1. 1906.) 

Eugene Buchanan, Appellant, v. Philip Labes et ci.. 

Respondents} 

Appeal — ^Review — ^New Trial— Affidavits. Upon appeal from an 
order granting a new trial, the supreme court will not consider an 
affidavit that was struck out at appellant's request 

New Trial — Juby — ^Misconduct — Party Treating a Juror. A new 
trial is properly granted for misconduct of a Juror where it appears 
that, during the progress of the trial, he engaged in private conversa- 
tions, and drank in a saloon, with a party to the suit. 

Sales — ^Warranty — ^Evidence by Parol to Vary Writing. Evi- 
dence of an oral warranty of a gasoline engine is not admissihle 
where it was sold by a written contract referring to a printed cata- 
logue for the terms of the warranty, which must control, and cannot 
be varied by parol. 

Sales — ^Warranty — ^Waiver — Question for Jury. In an action 
for breach of warranty on the sale of an engine it is not necessary 
to show notice to the manufacturer of defects within five days as 
provided in the contract, where the evidence tends to show a waiver 
of the notice, making the waiver and warranty questions for the Jury. 

Appeal from an order of the superior court for Lincoln 
county, Chapman, J., entered February 6, 1905, setting aside 
the verdict of a jury rendered in favor of the plaintiff, and 
granting a new trial. Affirmed. 

JET. N. Martin and /. T. Mulligan, for appellant. 
H, A. P. Myers, for respondents. 

Hadlet, J. — This is an action to recover the contract 
price of a gasoline engine which, it is alleged, was sold by 
the plaintiff to the defendants. The answer allies that the 
defendants ordered of plaintiff one twelve horse-power Flour 
City traction engine, and that the same was afterwards de- 
livered to them at Creston, Washington ; that the engine was 
warranted by the plaintiff to be built of good material and 
capable of developing twelve horse-power at all times when 
in use; that it was not capable of developing said amount 

1 Reported in 81 Pac. 911. 



BUCHANAN v. LABBB 41 1 

Aug. 1905] Opinion Per Hadu&y^ J. 

of power; that it was not built of good materials as war- 
ranted, and that the materials were put together in an un- 
workmanlike manner; that it constantly leaked gas and was 
of no value whatever ; that the defendants notified plaintiff 
that they desired a test made of the engine before accepting 
it, and that in response thereto the plaintiff and an expert, 
an employee of the manufacturer, went to Creston to make 
such test; that the test failed to prove that the engine was 
capable of developing twelve horse-power, and that both the 
plaintiff and the expert there admitted that it was defective ; 
that it leaked gas and was not up to the standard called 
for by the warranty. The material averments of the answer 
are put in issue by the reply. The cause was tried before 
a jury, and resulted in a verdict for the plaintiff. The de- 
fendants moved that the verdict be set aside and for a new 
trial. The motion was granted, and the plaintiff has appealed. 

It is assigned that the court erred in setting aside the 
verdict and granting a new trial. Affidavits were submitted 
in support of the motion for new trial, to the effect that dur- 
ing the trial one of the jurors was on several occasions en- 
gaged in, conversation with the appellant when no others 
were present; that after the evening meal of the day on 
which the trial was finished, the appellant and said juror 
drank together at the bar of the Vendome hotel ; that about 
noon of the same day the appellant and both respondents 
had taken a drink at said bar, and that appellant, seeing 
said juror in the lobby of the hotel, called to him, and in 
response thereto the juror came into the bar room and ap- 
pellant then treated him to a drink, and paid for the same ; 
that this was done without the suggestion or consent of 
respondents. 

Bespondents also call our attention to another affidavit 
made by a juror to the effect that, after the verdict had 
been signed by the foreman as a sealed verdict, about eleven 
o'clock at night, the jury separated, and nine or ten of them 



412 BUCHANAN v. LASER. 

Opinion Per Hadley, J. [39 Wash. 

were then treated to drinks by appellant's counsel and in 
appellant's presenca A motion was made to strike this 
affidavit, on the alleged ground that it tended to impeach 
the verdict The court filed a written opinion in deciding 
the motion for new trial, and referred to matter contained 
in tlie juror's affidavit as though it might have been con- 
sidered with the rest of the affidavits. Later, however, an 
additional written opinion was filed, to the effect that the 
court had overlooked the motion to strike the juror's affidavit, 
and the motion to strike it was granted. But the court stated 
that the decision by which the new trial was granted was 
not based upon that affidavit. The juror's affidavit is there- 
fore not before us for consideration, since it was strick^i 
at appellant's request, and the appeal of the latter does not 
bring that subject here for review. In view, however, of 
what is contained in the affidavits that were considered, we 
shall not interfere with the discretion exercised in the grant- 
ing of the new trial. 

Appellant contends that affidavits in the record show that 
the juror first mentioned, who conversed and drank with 
appellant, was of such established good character in the 
community that he could have been in no sense influenced 
thereby. Influences are, however, often subtle and may un- 
consciously aft'ect the verdict of a juror. The verdict should 
be free from the taint of even suspicion that it resulted 
from undue influence. The impropriety of the conduct of 
the juror and appellant is manifest. In Vollrath v. Crowe, 
9 Wash. 374, 37 Pac. 471, the plaintiff and one of the 
jurors played at cards and drank together in a saloon. They 
also walked together and conversed with each other. The 
court, in that case, said: 

"Such conduct upon the part of the plaintiff and the jury- 
man was reprehensible in the extreme. Instead of seeking 
each other's society they should rather have avoided it. Trials 
o^ '•auses should have the appearance of fairness, and it 



BUCHANAN v. LASER. 413 

Aug. 1905] Opinion Per Hadlet, J. 

would tend greatly to bring judicial proceedings into di&- 
repute if matters of this kind should be overlooked or tol- 
erated." 

It is, however, urged that the court should have dis- 
charged the jury and rendered judgment for appellant at 
the close of the respondents' case, and that, without re- 
gard to the matters considered on the motion for new trial, 
the judgment which was entered upon the rendition of the 
verdict was right and should not have been set aside. This 
contention is based upon the alleged ground that a verdict 
in favor of respondents could not have been sustained within 
the issues, and under the competent evidence in the case. 
It is asserted that the warranty of the engine was contained 
in a written contract, and that the evidence showed that 
respondents had not complied with the terms of the contract 
in regard to giving notice of defects in the engine. The 
respondents alleged in general terms that appellant warranted 
the engine and did not confine their allegations to a written 
warranty. The court ruled that, under the broad allega- 
tions of their pleading, they were entitled to show any war- 
ranty which was madC; either written or parol. But appellant 
points out that the written contract between the parties had 
been admitted in evidence without objection; that it was 
not in dispute, and that upon its face it referred to a cer- 
tain catalogue, published by the manufacturer, for the terms 
of the warranty; that it was therefore written, and that 
the evidence of a parol warranty was improperly admitted. 
This contention must be sustained under the following stated 
rule: 

"A warranty, however, is "no exception to the general 
rule excluding parol evidence offered to vary the terms of 
a written contract. If the contract of sale is in writing, 
its terms are conclusive as to the existence and the extent 
of express warranties made before or at the time of the 
sale, and evidence of prior or contemporaneous verbal agree- 
ments or representations is not admissible for the purpose 



414 BUCHANAN v. LABBR. 

Opinion Per Hadlet, J. [39 Wash. 

of proving other or different warranties ; the parties are pre- 
Biimed to have included in the written instrument all the 
terms of their agreement." 30 Am. & Eng. Ency. Law 
(2d ed.), 168. 

We must therefore refer to the published catalogue for 
the terms of the warranty. It clearly warrants the engine 
to be built of good material and to be capable of developing 
the horse-power mentioned in the contract between the parties, 
viz., twelve horse-power. It provides that, after written 
notice to the manufacturer of defects in the engine, rea- 
sonable time shall be allowed to remedy the defects and 
apply certain tests as to the power it may develop. And 
it also contains the following clause: 

"Continued possession of the engine for five days without 
complaint being made direct to the Kinnard-Haines Co., 
at its factory in Minneapolis, Minnesota, by registered letter, 
shall be sufficient evidence that this warranty is fulfilled." 

Appellant contends that respondents failed to show that 
they gave notice in accordance with the above, and that by 
the express terms of the contract the warranty was therefore 
fulfilled. There was evidence, however, tending to show 
that appellant waived that provision of the contract, and 
it therefore became a question for the jury to determine 
whether it was waived, and if so whether the engine was 
up to the standard of the warranty. 

The judgment is affirmed. 

Mount, C. J., Fullerton, Rudkin, Cbow, Eoot and 
DuNBAB, JJ., concur. 



KIRKHAM V. WHEELBR-OSGOOD CO. 4^5 

Aug. 1905] Syllabus. 

(No. 6654. Decided August 1, 1906.) 

Lee Kibkham, an Infant^ by his Guardian ad Litem, J, D. 

Kirkham, Respondent, v. The Wheeleb- 

OsGOOD Company, Appellant} 

Damages — Futube Pain and Suffering — Permanent Injury — In- 
structions. Future pain and suffering from the mangling of a hand 
is a matter of such common knowledge that a recovery therefor is 
warranted without evidence thereof aside from the injury itself. 

Same — ^Error Cured by Subsequent Instructions. An instruc- 
tion authorizing a recovery for such future pain and suffering as the 
plaintiff may endure as the ordinary and actual result and as a con- 
sequence of the injury is not prejudicial error in that it fails to 
limit the recovery to such future pain and suffering as would reason- 
ably and probably flow from the injury, especially in view of an in- 
struction that under no circumstances should an unreasonable or 
excessive verdict be returned. 

Master and Servant — Child Labor — Factory Act — Construc- 
tion. The factory act, Laws 1903, p. 261, providing that children 
under fourteen years of age shall not be "hired out" is intended to 
forbid their employment, as well as hiring out by parents, and the 
prohibition extends to all connected therewith, making the employ- 
ment itself illegal. 

Master and Servant — Negligence — Injury to Employee of 
Tender Years — ^Warranty — Instructions. In an action for personal 
injuries sustained by an employee twelve years of age, a charge to 
the jury that it is not enough to give general instructions as to 
dangers, but that they should have been such as to satisfy a careful 
person that he was familiar with the exact danger, is not objection- 
able taken as a whole, as assuming as a matter of law that general 
instructions are not sufficient. 

Same — Duty to Protect. A disconnected portion of a charge to 
the jury to the effect that defendant owed the duty to protect plain- 
tiff from risks which one of his age did not properly appreciate, may 
not be objectionable as an assumption that he did not appreciate the 
dangers. 

Same — ^Degree of Care. In an action for personal injuries sus- 
tained by an employee twelve years of age, who had had no experi- 
ence in a factory, an instruction that the degree of care owed by the 
defendant is much greater than is due an adult is not prejudicial, 
especially where the degree of care was afterwards correctly stated. 

1 Reported in 81 Pac. 869. 



416 KIRKHAM V. WHEELER-OSGOOD CO. 

Citations of Counsel. [39 Wash. 

Same. An instruction, informing the jury as to the facts and 
circumstances that they might take into consideration in determin- 
ing the degree of care required, is not open to the objection that 
it gives no rule for the guidance of the Jury, when the court declared 
that the ordinary care required was such as an ordinarily prudent 
person would use under the circumstances. 

Same — Contributory Negligence. A charge on the subject of con- 
tributory negligence, that the burden of proof is upon the defendant 
to prove that the plaintiff was injured by his own negligence, and 
not by the negligence of the defendant, does not limit the defense to 
cases where defendant is not negligent, when explained by a fuller 
correct explanation of contributory negligence. 

Master and Servant — Child Labor — False Representation of 
Minor as to Age — Estoppel in Pais. In an action for injuries to a 
child under fourteen years of age, employed contrary to the provis- 
ions of the factory act, it is no defense that the child represented 
himself as being over fourteen, since estoppel in pais growing out of 
contracts does not o];>erate against a minor. 

Appeal from a judgment of the superior court for Pierce 
county, Chapman, J., entered October 12, 1904, upon the 
verdict of a jury rendered in favor of the plaintiflF, in an 
action for personal injuries (the mangling of a hand in a 
sticker machine) sustained by a boy employed in a factory, 
contrary to the provisions of the factory act. Affirmed, 

Hudson <& Holt, for appellant. The instruction as to future 
loss and suffering was bad because not properly limited to 
such as was "reasonably certain" to result. Watson, Dam- 
ages, pp. 363-305, 384 ; ^yhite v. MilwavJcee City R. Co., 
21 Wis. 536, 21 K W. 524, 94 Am. Dec. 562; Hardy v. 
Milwaukee SL R, Co., 89 Wis. 183, 61 N. W. 771 ; 15 Cent 
Dig., col. 1957; 13 Cyc. 138, 139; Raymond v. Keseburg, 
91 Wis. 191, 64 X. W. 861; Fry v. Dubuque etc. R. Co., 
45 Iowa 416 ; Ross v. Kansas City] 48 Mo. App. 440; Ayers 
V. Delaware etc. R. Co., 158 K Y. 254, 53 N. E. 22 ; Ohio 
etc. R. Co. V. Cosby, 107 Ind. 32, 7 N. E. 373 ; Kucera v. 
Merrill Lum. Co., 91 Wis. 637, 65 K W. 374; Curtis v. 
Rochester etc. R. Co., 18 X. Y. 534, 75 Am. Dec. 258 ; Smith 
V. Milwaukee Builders' etc. Exchange^ 91 Wis. 360, 64 N. 



KIRKHAM V. WHEELBR-OSGOOD CO. 4^7 

Aug. 1905] Citations of Counsel. 

W. 1041, 51 Am. St 912, 30 L. R. A. 504. The employ- 
ment of a minor is not negligence per se. 1 Labatt, § 18 ; 
Youll V. Sioux City etc. R. Co., 66 Iowa 346, 23 N. W. 736 ; 
Buckley v. Guita-Percha etc. Mfg. Co., 113 N. Y. 540, 21 
N. E. 717; O'Keefe v. Thome (Pa. St.), 16 Atl. 737. The 
statute is to be strictly construed. Daggett v. State, 4 Conn, 
60, 10 Am. Dec 100; 26 Am. & Eng. Ency. Law (2d ed.), 
661, 662, Endlich, Interpretation of Statutes, § 76 ; Prescott 
etc. B. Co. V. Aichinson etc. B. Co., 73 Fed. 438 ; Barry v. 
Snowden, 106 Fed. 571. The presumption is that words 
were used in their popular sensa 26 Am. & Eng. Ency. Law 
(2d ed.), 625; Endlich, Interpretation of Statutes, § 76; 
Coming v. Board of Conirs, 102 Fed. 57. It is not competent 
to "beg the intent" of a statute. Northern Pac. B. Co. v. 
United States, 36 Fed. 282. Accordingly employmeait is not 
forbidden by the provision that a child shall not be "hired 
out." 26 Am. & Eng. Ency. Law (2d ed.), 654. It is an 
encroachment upon the province of a jury to charge that it was 
not enough to give "to one of his age general instructions as 
to the dangers, but the instructions should have been such as 
would have satisfied," etc., since it assumes that the instruc- 
tions given were not sufficient, because they were not such 
as would satisfy a reasonably prudent person, etc. This 
was a manifest instance of an instruction on the weight of 
the evidence. Boyer v. Northern Pac. B. Co., 27 Wash. 707, 
68 Pac. 348; 1 Labatt, § 252; Probert v. Phipps, 149 Mass. 
258, 21 K E. 370; McDougall v. Ashland Sulphite-Fibre 
Co., 97 Wis. 382, 73 K W. 327 ; Beynolds v. Boston etc. B. 
Co., 64 Vt. 66, 24 Atl. 134, 33 Am. St. 908 ; Bibb Mfg. Co. 
V. Taylor, 95 Ga. 675, 23 S. E. 188. An infant as well as 
an adult is charged with notice of dangers. Luebhe v. Berlin 
Mach. WorJcs, 88 Wis. 442, 60 N. W. 711, 43 Am. St. 913 ; 
1 Labatt, § 398. The breach of statutory duty does not take 
away the defense of contributory negligence. 2 Labatt, p. 
2203 : Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 

27—^9 WASH. 



418 KIRKHAM V. WHEELER-OSGOOD CO. 

Citations of Counsel. [39 Wash. 

S. W. 460, 49 Am. St. 935, 30 L. R. A. 82 ; 1 Thompson, 
Xegligence, p. 606; 2 Id., p. 1175; Bishop, Non-Contract 
Law, § 140; Evans v. American Iron & Tube Co., 42 Fed. 
519; Krause v. Morgan (Ohio St.), 40 N. E. 887; Green t\ 
^Yestern American Co., 30 Wash. 87, 70 Pac. 310; Hayes v. 
Bush etc. Mfg. Co., 102 N. Y. 648, 5 K E. 784; Tvedt v. 
Wheeler, 70 Minn. 161, 72 N. W. 1062 ; Lore v. American 
Mfg. Co., 160 Mo. 608, 61 S. W. 678 ; Queen v. Dayton Coal 
& Iron Co., 95 Tenn. 458, 32 S. W. 460, 49 Am. St 935, 
30 L. R. A. 82; Brower v. Locke, 31 Ind. App. 353, 67 
N. E. 1015 ; Marino v. Lehmaier, 173 N. Y. 530, 66 X. E. 
572 ; Lynchburg Cotton Mills v. Stanley, 102 'Va. 690, 46 
S. E. 908. 

Govnor Teats, for respondent, contended, inier alia, that 
the purpose of the factory act is to prevent the employment 
of child labor. Tvedt v. Wheeler, 70 Minn. 161, 72 X. W. 
1062 ; Christiansen v. Northwestern Compo-Board Co., S3 
Minn. 25, 85 X. W. 826, 85 Am. St 440; Green v. Western 
American Co., 30 Wash. 87, 70 Pac. 310; Lore v. American 
Mfg. Co., 160 Mo. 608, 61 S. W. 678; Perry v. Tozer, 90 
Minn. 431, 97 X". W. 137, 101 Am. St 416; Ornamental 
Iron & Wire Co. v. Green, 108 Tenn. 161, 65 S. W. 399; 
Queen v. Dayton Coal & Iron Co., 96 Tenn. 458, 32 S. W. 
460, 49 Am. St. 935, 30 L. E. A. 82. The defense of 
contributory negligence should not apply. Lynchburg Cotton 
Mills V. Stanley, 102 Va. 590, 46 S. E. 90S; Marino v. Leh- 
maier, 173 X. Y. 530, 66 X. E. 572. Defendant's duty was 
to instruct as to the dangers. Shearman & Redfield, X'egli- 
gence (5th ed.), § 219; Cooley, Torts (2d ed.), p. 652; 
Bailey, Master's Liability, p. 114; 4 Thompson, Xegligence, 
§§ 4091-4103; Fitzgerald v. Alma Furniture Co., 131 X. C. 
636, 42 S. E. 946; Cleveland Rolling-Mill Co. v. Corrigan, 
46 Ohio St 283, 20 X. E. 466, 15 Am. St 596, 3 L. R A 
385. 



KIRKHAM V. WHEELER-OSGOOD C50. 4^9 

Aug. 1906] Opinion Per Rudkin^ J. 

RuDKiN, J. — On and prior to the 8th day of January, 
1904, the defendant owned and operated a factory for the 
manufacture of sash, doors^ mouldings, etc., in the city of 
Taooma. On the 10th day of December, 1903, the plaintiff, 
an infant of the age of about twelve years, entered the 
employ of the defendant. Up to the 6th day of January, 
1904, the plaintiff and his elder brother were engaged in 
tying up siding in a shed adjacent to the factory. On or 
about January 6th, they were transferred to the factory 
to point pickets and tie them into bundles. In close prox- 
imity to the place where the plaintiff was- at work, was a 
sticker machine, used in the manufacture of pickets. On 
the last named date, a sliver became fast in the sticker 
machine and, while the operator's back was turned, the plain- 
tiff attempted to remove it. In doing so his hand came in 
contact with the rapidly revolving knives in the head of 
the machine, causing the loss of the third and fourth fingers 
and a portion of the hand. The plaintiff had nothing to do 
with the operation of the sticker machine, and it was no 
part of his duty to remove the sliver therefrom. This action 
was brought to recover damages for the injuries so received. 

The complaint alleged negligence on the part of the de- 
fendant, in putting the plaintiff at work in a dangerous place, 
without proper instructions, and without warning him against 
the dangers by which he was surrounded and to which he 
was exposed, and also negligence in employing the plaintiff 
in violation of the act of March 16, 1903, entitled, "An 
act to regulate the employment of child labor and to pro- 
hibit the employment of females under the age of eighteen 
years as public messengers and fixing a penalty for the 
violation thereof." Laws 1903, p. 261. The answer, in 
addition to the denials, alleged affirmatively contributory 
negligence on the part of the plaintiff, and that the plain- 
tiff at the time of his employment represented that he was 
fourteen years of age. The case was tried before a jury 



420 KIRKHAM V. WHBBLBR-OSGOOD CO. 

Opinion Per Rudkix, J. [39 Wash. 

and resulted in a verdict and judgment for the plaintiff. 
The defendant appeals. 

Numerous errors are assigned by the appellant, all of 
which are discussed under six general heads, and we will 
consider them in the same order. The first error assigned 
relates to instructions as to future suffering and loss. The 
court instructed the jury that, if they found for the r^ 
spondent, they might take into account the pain and suffer- 
ing the respondent had endured and may endure as the 
ordinary and actual result, and as a consequence of the in- 
jury sustained. The first objection to this instruction' is, 
that there was no evidence as to future pain and suffering, 
and that the question should not have been submitted to 
the jury. It is true, there was no evidence to speak of as 
to future suffering or pain, aside from the nature of the 
injury itself. But a hand, mangled as this was, is subject 
to injury and consequent pain through life, where an unin- 
jured member would not be affected, and we think this is 
so far a matter of common knowledge that the court would 
not be warranted in withdrawing the question of future pain 
and suffering from the jury. Like the question of the per- 
manency of the injury, the injury in this case speaks for 
itself. It was further objected to this instruction that the 
court did not confine the jury to such pain or suffering as 
would reasonably or probably flow from the injury com- 
plained of. We do not think this objection is tenable, espe- 
cially in view of the fact that the court instructed the juiy 
that under no circumstances should an unreasonable or ex- 
cessive verdict be returned. 

The next assignment is, that the court erred in its in- 
structions as to the child labor act of 1903, supra. This 
contention of tlie appellant is based upon the language of 
the act which declares that no child under the age of four- 
teen years shall be hired out in any factory, etc. It is con- 
tended that a child can only be hired out by the parent or 
guardian, and that the prohibition against the employment 



KIRKHAM V. WHEELER-OSGOOD CO. 42 1 

Aug. 1905] .Opinion Per Rudkin, J. 

• 

does not therefore extend to the employer. This contention 
cannot be upheld. The manifest purpose of the act is to 
prohibit the employment of children in certain places, and 
the prohibition extends to all parties connected with the 
employment. The employment as well as the hiring out, is 
forbidden. An employer who knowingly employs or keeps 
in his employ a minor within the prohibited age, is guilty 
of a violation of the statute, and the employment itself is 
illegal. In the case at bar the minor was employed with- 
out the intervention of either parent or guardian, and if we 
adopt the views of counsel the act punishes only the child 
himseK, the very person whom it sought to protect. It is 
needless to say we can adopt no such construction. 

The next assignment relates to instructions on the weight 
of the evidence. In speaking of the instructions which it 
was incumbent on the appellant to give the respondent on 
entering its employ, the court said: 

"You are instructed that it was not enough to give the 
plaintiff or one of his age general instructions as to the 
dangers, but the instructions to the boy should have been 
such as would have satisfied a reasonably prudent and care- 
ful person that he was familiar with the exact danger that 
would be likely to befall a boy of his age, while working 
around the place where he was injured." 

Counsel criticise that portion of the instruction which is 
to the effect that general instnictions are not sufficient As an 
abstract statement this i)ortion of the charge may not be cor- 
rect. Instructions are required for a particular purpose and, 
if they are sufficient to satisfy the requirements of the law 
in that regard, it matters not whether they are general or 
special. While it cannot be said as a matter of law that 
general instructions are not sufficient, yet, when we take this 
statement in connection with what follows, we think the 
instruction as a whole fairly states the law. 

The court further instructed the jury that, "It was the 
duty of the defendant to use ordinary care to protect him 



422 KIRKHAM y. WHEELER-OSGOOD CO. 

Opinion Per Rudkin, J. . [39 Wash. 

[the plaintiff] from risks which one of his age did not 
properly appreciate, and to which dangers plaintiff on^t 
not to be exposed." It is claimed by the appellant that 
the court informed the jury by this instruction that the 
respondent was not capable of appreciating the risks and 
should not have been exposed to them. The above quota- 
tion is a disconnected portion of a sentence, and when the 
instruction is taken as a whole it is not open to the cariti- 
cism urged against it. 

Again, the court instructed the jury that, "The degree 
of care due by the defendant to the plaintiff or to one of 
tender years is much greater than is due to an adult" The 
degree of care required in either case is dependent entirely 
upon circumstances. It may be gross negligence on the part 
of a master to employ either a minor or an adult, without 
experience, in a dangerous place, without fully instructing 
him as to the dangers to which he is exposed- On the other 
hand, it may not be negligence to employ either, without 1 

any instructions whatever. It depends* entirely upon the 
nature of the employment and the surroundings. A minor 
may be of such tender years that a court can declare as a 
matter of law that his employment is n^ligence, but inde- 
pendent of statute, the employment of a minor is not ordi- 
narily negligence per se. In determining the question of 
negligence, the jury must take into consideration the minor's 
age, his experience, his intelligence, the nature of his sur- 
roundings, the dangers to which he is exposed, and all the 
attendant ciraimstances. It is often said by text-writers 
and by courts that the law exacts a greater degree of care 
in the employment of a minor than of an adult, and this, as 
a general rule, is true. But its bare statement convevs but 
little information to a jury. Where the plaintiff is a minor, 
the court is not required to instruct the jury as to the degree 
of care required in the employment of an adult, the jury 
are not themselves informed on that subject, and to compare 
the degree of care required in a given case, in which it is 



KIRKHAM V. WHBELER-OSGOOD CO. 423 

Aug. 1905] Opinion Per Rudkin, J. 

the duty of the court to fully inform the jury, with the de- 
gree of care required in a case not before them, and in 
regard to which they are presumed to be equally ignorant, 
does not tend to enlighten them, to say the least. In this 
case, however, the respondent was an infant of about twelve 
years of age, without experience in mills or factories, and 
the statement of tie court that the law required a much 
higher degree of care in his case than in the case of an 
adult is not prejudicial, especially in view of the fact that 
the degree of care required in the respondent's case was after- 
wards correctly stated to the jury. 

The next error assigned relates to instructions as to the 
degree of care required of the respondent In support of 
this assignment it is urged that the court informed the jury 
as to the different facts and circumstances that might be 
taken into consideration in determining the degree of care 
required of the respondent, but laid down no rule for their 
guidance. The court instructed the jury that the respondent 
was required to use ordinary care to avoid injury, that is, 
such care as an ordinarily prudent person would use under 
the facts and circumstances shown by the evidence, taking 
into consideration his age, capacity, knowledge, and experi- 
ence. There is therefore no merit in this assignment. 

On the question of contributory negligence, the court in- 
structed the jury as follows: 

"The jury are instructed that as to the defenses made by 
the defendant in its answer, the burden of proof is upon 
the defendant; that is to say, the defendant must prove by 
a fair preponderance of testimony that the plaintiff was in- 
jured by his own n^ligence, and not by the negligence of 
the defendant." 

It is urged that this instruction is erroneous because it 
limits the defense of contributory negligence to a case in 
which the plaintiff is negligent and the defendant is not. 
The above instruction was explained by the following: 

"An employee is bound to exercise that degree of care 



424 KIRKHAM V. WHEELER-OSGOOD CO. 

Opinion Per Rudkix, J. [39 Wash. 

which a reasonably prudent person of his age, judgment, 
and experience would use in order to avoid being injured. 
Where an employee fails to exercise the care which is re- 
quired of him and is injured, when if he had employed the 
proper degree of care he would not have been injured, such 
employee is said to be guilty of contributory negligence. If 
you find in this case that the plaintiff was guilty of con- 
tributory negligence you must find for the defendant." 

Waiving the question whether this definition of contribu- 
tory negligence is technically correct, taking the two instruc- 
tions together, the jury could not have been misled. 

It is lastly assigned as error that the court refused to in- 
struct the jury that, if the respondent at the time of his 
employment represented that he was fourteen years of age, 
he is now estopped to deny it. It is true, as claimed by 
counsel, that infants are liable for their torts; that is, for 
pure torts, such as injuries to person or property. On the 
other hand, by the great weight of authority, infants are 
not liable for torts connected with or growing out of con- 
tracts, and the doctrine of estoppel in pais does not apply 
to them. 16 Am. & Eng. Ency. Law (2d ed.), pp. 307, 308; 
Field, Law of Infants, § 17; Sims v. Everhardi, 102 U. 
S. 300. In the last case cited, the supreme court of the United 
States says: 

"The question is, whether acts and declarations of an 
infant during infancy can estop him from asserting the in- 
validity of his deed after he has attained his majority. In 
regard to this there can be no doubt, founded either upon 
reason or authority. Without spending time to look at the 
reason the authorities are all one way. An estoppel in pais 
is not applicable to infants, and a fraudulent representation 
of capacity cannot be an equivalent for actual capacity." 

A careful examination of the record in this case discloses 
no reversible error, and the judgment is therefore affirmed. 

Mount, C. J., Hadley, Eoot, Cbow, Fullebton, and 
DuNBAB, JJ., concur. 



DRASDO V. JOBST. 425 

Aug. 1905 J Citations of Counsel. 

(No. SerO. Decided Augrust 2, 1905.) 

Dora Marsh Drasdo, Appellant, v. Frank Jobst et al,, 

as Executors, etc, of Paul Drasdo, 

Deceased, Respondents} 

EXECUTOBS AND ADMINISTRATORS — FiNAL SETTLEMENT — PENDENCY 

OF Litigation — Jurisdiction. An objection to the jurisdiction of the 
court to settle the final account of executors, because of the pendency 
of appeals in the supreme court in litigation concerning the distribu- 
tion of the property, is unavailing, where at the time of the hearing 
in the supreme court such appeals have been finally determined. 

Same — Findings — Recitals — Separate Character of Property — 
Former Adjudication in Course of Administration — Finality. 
Upon the final distribution of an estate, error cannot be predicated 
on recitals in the findings as to the separate and community char- 
acter of the property, and the findings cannot be reviewed, where 
that matter had formerly been determined in the course of adminis- 
tration in special proceedings for the purpose, and the findings made 
no change in that respect. 

Same — Debts — Findings. A finding upon the final settlement of 
the estate that there are no debts, is sustained where the evidence 
showed no debts except funeral expenses and the costs of administra- 
tion, and the only bill presented was disallowed. 

Appeal from an order of the superior court for King 
county, Bell, J., entered January 4, 1905, upon findings in 
favor of executors, after a hearing upon the merits, settling 
their final account and making distribution of the estate. 

C. H. Farrell and Piles, Donworth, Ilowe & Farrell, for 
appellant, contended, among other things, that the court has 
no right to decree final distribution, where at the time the 
estate is involved in litigation. Woemer, Administration, 
pp. 1230, 1234; Estate of Ricaud, 57 Cal. 421; Ham v. 
Komegay, 85 N. C. 119 ; Cummings v. Cummings, 143 Mass. 
340, 9 K E. Y30 ; State v. Roth, 47 Ark. 222, 1 S. W. 98 ; 
Prefontaine v. McMichen, 16 Wash. 16, 47 Pac. 231 ; Ben- 
nett's Estate, 132 Pa. St. 201, 19 Atl. 58: Horton v. Barto, 

1 Reported in 81 Pac. 857. 




426 DRASDO V. JOBST. 

Opinion Per Mouirr, G. J. [39 Wash. 

17 Wadi. 675, 50 Pac. 587 ; Huston v. Becker, 15 Wash. 586, 
47 Pac. 10. An adverse claim must be determined bv a court 
of general jurisdiction, and not by a probate court. Woemer, 
Administration, p. 344 ; Theller v. Such, 57 CaL 447 ; In re 
Walker's Will, 132 N. Y. 20, 32 N. E. 633; In re Mous- 
seaus Estate, 40 Minn. 236, 41 N. W. 977 ; Estate of Haas, 
97 Cal. 232, 31 Pac. 893 ; Stewart v. Lohr, 1 Wash. 341, 
25 Pac. 457, 22 Am. St. 150; In re Alfstad's Estate, 27 
Wash. 175, 67 Pac. 593 ; In re Singleton's Estate (Nev.), 
64 Pac. 513. 

William Martin, for respondents. 

Mount, C. J. — This appeal is from an order in probate 
settling the final account of the executors of the estate of 
Paul Drasdo, deceased, and making distribution of his sep- 
arate estate. Paul Drasdo died on June 15, 1903. He left 
a valuable estate. There were no direct heirs except a 
widow, who was not living with him at the time of his 
death. Prior to his death he made a will, by the terms of 
which he disposed of all his property, leaving to his widow 
one dollar. Immediately after his death a special adminis- 
trator was appointed, who took diarge of the estate. The 
will was subsequently probated, and Frank Jobst and Ernst 
Drasdo were appointed executors. They qualified as sudi 
and, on June 29, 1903, gave notice to creditors. 

Subsequently the widow applied for letted testamentary 
upon the community estate. Upon notice and a hearing, 
J. A. Paine was appointed such administrator, and quali- 
fied. Thereafter the widow made an application for an 
allowance pending tlie settlement of the estate, and on the 
28th day of October, 1903, said allowance was made, and 
sustained by this court in In re Drasdo's Estate, 36 Wash. 
478, 78 Pac. 1022. On the 11th day of October, 1904, the 
executors filed tlieir final account and petitioned for distri- 
bution of the separate estate of the deceased, and gave due 



DRASDO V. JOBST. 427 

Aug. 1905] Opinion Per Mount, C. J. 

notice thereof. The widow and the administrator of the 
community esta^te appeared and filed exceptions to the ao- 
count, and alleged that all the property then in possession 
of the executors was community property. At the time of 
the hearing on the final account, the widow and the adminis- 
trator of the community estate objected to the jurisdiction 
of the court to settle the estate, upon the ground that certain 
litigation was then pending concerning the property of the 
estate. It was stated that the remittitur had not gone down 
from this court in In re Drasdo's Estate, supra, and that 
an action which had been brought by the administrator of 
the community estate, claiming the whole estate as com- 
munity property, was also pending in this court. These 
objections were denied, and the court proceeded to a hear- 
ing upon the settlement of the estate and of the final ac- 
count, and at the close thereof made findings as follows: 

" ( 1 ) That said Paul Drasdo died in Seattle, King county, 
Washington, on the 15th day of June, 1903, leaving a last 
will and testament disposing of all of his separate estate, 
wherein Frank Jobst and Ernst Drasdo were selected and 
appointed executors, and thereafter on, to wit, the 29 th day 
of June, 1903, the said last will and testament was duly 
and regularly filed and probated in the superior court of 
King county. State of Washington, and since the probating 
of said will as aforesaid no contest of any kind has been 
inaugurated against the same. 

"(2) That on the 14th day of August, 1902, said Paul 
Drasdo, deceased, and the said Dora Marsh Drasdo were 
married at Seattle, King county, Washington, and the mari- 
tal community then formed existed until the date of the 
death of said Paul Drasdo, deceased, as aforesaid. 

"(3) That at the time of the death of the said Paul 
Drasdo, he was possessed of the following separate property, 
to wit: Two certificates of deposit in the sum of $5,000 
each ; eight railroad bonds of the Northern Eailroad of Cali- 
fornia of the par value of $1,000 each, with accrued interest ; 
one restaurant known as the Vienna Cafe, situated at 520 
Second avenue, Seattle, Washington, together with the lease 
thereon. 



428 DRASDO V. JOBST. 

Opinion Per Mount, C. J. [39 Wash. 

"(4) That at the time of the death of the said Paul 
Drasdo, the marital comjnunity consisting of the said de- 
cedent and the said Dora Marsh Drasdo, possessed the follow- 
ing community property, to wit: $1,060.75 found ui)on the 
person of said decedent at the time of his death; $1,000 
found in the safe deposit box in the city of Taooma, State 
of Washington; one horse and buggy, one diamond ring, 
household furniture and effects of the value of $4,000, per- 
sonal furniture and furnishings situated in the Vienna Cafe 
hereinabove referred to of the vahie of $800, a claim against 
said Vienna Cafe for the services of the said Paul Drasdo, 
deceased, amounting to two thousand dollars- 

."(5) That during the existence of said marital oam- 
munity, the said Paul Drasdo, deceased, and Dora Marsh 
Drasdo, received from the said Vienna Cafe and used for 
their household expenses the sum of $2,000, and in addition 
thereto tlie said marital community during its existence re- 
ceived from said Vienna Cafe from the the separate estate 
of said Paul Drasdo, deceased, the sum of $5,000. 

*'(6) That on, to wit, the 20th day of April, 1903, said 
Paul Drasdo, deceased, transferred to a corporation thereto- 
fore formed, named the Vienna Cafe, the said restaurant and 
the good will thereof, the same being then and having been 
for more than two years prior thereto a separate property, 
and received for such transfer twenty-eight shares of the 
capital stock of said corporation. 

"(7) That under the terms of the said last will and 
testament of the decedent, Paul Drasdo, he bequeathed to 
Ernst Drasdo, his brother, the twenty-eight shares of the 
capital stock of the Vienna Cafe, a corporation, hereinabove 
referred to ; to Albert Thalheim, a half-brother, of St, Louis, 
Missouri, the sum of $5,000; to Dora Marsh Drasdo, the 
sum of one dollar, and the remainder of his estate to Martha 
Brobardt, a sister, of Karls Ruhe, Germany. 

"(8) On the 28th day of October, 1903, this court, by 
an order regularly made, after full hearing and notice to all 
the parties, set apart to Dora Marsh Drasdo, widow of said 
decedent, all of the household furniture and effects herein- 
above referred to, amounting in value to about $4,000, and 
in addition thereto, at the same time, ordered that she be 
paid from the separate estate of the said Paul Drasdo, de- 
ceased, the sum of $250 per month as a family allowance 



DRASDO V. JOBST. 429 

Aug. 1905] Opinion Per Mount, C. J. 

pending the settlement and distribution of the said decedent's 
estate, and said order was thereafter affirmed by the supreme 
court of the State of Washington. 

"(9) That during the existence of the maritax ooramu- 
nity consisting of said Paul Drasdo and Dora Marsh Drasdo, 
the said Paul Drasdo so commingled his earnings as manager 
of the Vienna Cafe with the property of said Vienna Cafe 
that it was impossible to ascertain without investigation 
which was community and which was separate property, and 
in addition there was good reason to believe at the prelim- 
inary hearing that the lease of the said Vienna Cafe was 
the community property of said Paul Drasdo and Dora 
Marsh Drasdo, and upon petition this court, on the 14th day 
of July, 1903, appointed J. A. Paine administrator of the 
community estate of the said Paul Drasdo and Dora Marsh 
Dradso and directed him, as such administrator, to take pos- 
session of the said Vienna Cafe and hold and conduct the 
same until the further order of the court. That thereafter, 
on to wit, the 10th day of August, 1903, this court, by an 
order made, directed said administrator to turn the said 
Vienna Cafe over to the executors of the estate of Paul 
Drasdo, deceased. That during the time said administrator 
of the community estate was in possession of said cafe and 
conducted the same, he collected certain moneys and made 
certain disbursements necessary in the management thereof. 

"(10) That due and legal notice of the petition of the 
executors herein for the settlement of their final account and 
the ^distribution of said estate, was posted and published and 
given in all respects as required by law and all the debts 
of the said decedent have been paid with the exception of 
the expenses of the administrator and the family allowance 
of $250 per month to Dora Marsh Drasdo, hereinabove re- 
ferred to. That more than one year has elapsed since the 
publication of the notice to creditors to present their claims, 
from the time of the filing of the publication of the said 
notice up to the time of the filing of the said petition for 
settlement and distribution, and said estate is now in a con- 
dition to be distributed under and in accordance with the 
will of the said decedent, Paul Drasdo. 

"(11) That the final account filed herein by said execu- 
tors of said estate is correct in all respects, and is hereby 
approved, settled and allowed." 



430 DRASDO V. JOBST. 

Opinion Per Mount, C. J. [39 Wash. 

The twelfth finding fixed the fees of the executors and 
the attorneys. Upon these findings an order was made, ap- 
proving the account and distributing the separate estate ac- 
cording to the terms of the will, after paying to the widow 
$4,666.66, the amount due her under the order of allowance 
up to the time of the final order. The widow appeals. 

Twenty-five errors are assigned, many of which are ob- 
viously without merit. We shall notice those only v^ich 
appear to have been made in good faith. Four of the as- 
signments of error are based upon objections to the juris- 
diction of the court to decree a final distribution while there 
was litigation pending involving property belonging to the 
estate. Several authorities are cited to the effect that, where 
there is imdeterrained litigation pending, which involves the 
right of the estate to certain property, the estate is not ready 
for distribution. But in the record before us, whatever liti- 
gation there had been concerning this estate appears to have 
been finally determined. It is true that one or two appeals 
had been taken, but those appeals appear to have been long 
since disposed of. So that, if the rule is as contended for 
by appellant, it is not now applicable to this case. 

Appellant also contends that the court erred in making cer- 
tain findings determining what property was the separate 
estate of Paul Drasdo, deceased, and what property was com- 
munity property of Drasdo and wife. These questions had 
formerly been determined in the course of the administration 
of the estate and in special proceedings for that purpose, and 
certain pro}^erty had been set over to the appellant and to the 
administrator of the community estate. The separate estate 
had been set over to the executors under the will. These 
findings made no change in that respect; but simply recited 
the ultimate facts in relation thereto. We think no error 
can be based on such recitals, and ttat appellant cannot re- 
view them in this proceeding. 

Appellant also contends that the court erred in finding 
that all the debts had been paid with the exception of the 



MITCHELL V. MITCHELL. 431 

Aug. 1905] Syllabus. 

expenses of administration and the widoVs allowance; but 
as we read the evidence, there were no debts except the funeral 
expenses and the expenses of administration. It is true, a 
bill of $50 wajB presented by one person claiming to be a 
creditor, but it awras disallowed and withdrawn, and the time 
for enforcing it had long since expired. There seems to be 
no dispute in the evidence as to the correctness of any item 
of the account of the executors. All the items thereof ap- 
pear to be proper and legally chargeable against the estate, 
and we see no reason why the account should not be allowed 
and the estate finally settled as ordered by the court. 

The order appealed from is therefore affirmed, with costs 
against the appellant. 

Hadley, Cbow, Kudkin, and Fitlleeton. JJ.. concur. 



(No. 5283. Decided Ausrust 2, 1905.) 

LuciNA Mitchell. Respondent, v. Alanson Mitchell, 

Appellant} 

DiYOBCE — Cruelty — Rendering Life Burdensome — Findings — 
Construction. Upon granting a divorce for cruelty, the findings 
need not specifically include one that the cruelty rendered life bur- 
densome, where the specific acts of cruelty found conclusively show 
that they did render life burdensome. 

Same — ^Distribution of Property — ^Awarding all to Wife — Dis- 
cretion. It is within the discretion of the trial court, upon grant- 
ing a divorce and awarding the custody of infant children to a wife, 
to award her all the real estate, of the value of $1,600, where she 
is not strong and the husband is an able bodied man and wholly 
at fault. 

Same — Decree — Alternative Payment — ^Taking Advantage of. 
Error cannot be predicated on the entry of a Judgment of divorce 
decreeing real estate to the wife, without giving the defendant an 
opportunity to take advantage of an alternative, expressed in the 
conclusions of law, of paying $1,600 in lieu thereof, where the record 
fails to show that the defendant desired so to do at the time the Judg- 
ment was entered. 

1 Reported in 81 Pac. 913. 



432 MITCHELL V. MITCHELL. 

Opinion Per Mount, C. J. [39 Wash. 

Appeal from a judgmeait of the superior court for Lincoln 
county, Xeal, J., entered February 15, 1904, upon findings in 
favor of the plaintiff, after a trial on the merits before the 
court without a jury, decreeing a divorce, and awarding prop- 
erty and the custody of children. Affirmed. 

Myers & Warren, for appellant. 
Martin & Grant, for respondent. 

Mount, C. J. — The plaintiff in this action was granted a 
decree of divorce from defendant, upon the ground of cruelty. 
She was awarded the care and custody of two infant chil- 
dren, and all the real property of the community. Defend- 
ant appeals. 

The evidence taken on the trial of the cause is not brought 
here on this appeal, and no exceptions were made to any of 
the findings. The only questions presented are based upon 
the face of tlie record. It is contended by appellant that the 
acts of cruelty found by the trial court are insufficient to 
justify the decree, because the court did not find that such 
facts rendered the life of the respondent burdensome. Hie 
finding of cruelty is as follows: 

**That about six years ago the above named defendant be- 
gan to mistreat and abuse and cruelly treat the plaintiff in 
this, that he would scold and abuse the plaintiff in private 
and in company, and slight her in all manner of ways when 
out in company, in such ways as were calculated to humili- 
ate and degrade plaintiff. From that time and ever since 
said date the defendant has been continually mistreating the 
plaintiff by calling her vile names and conduct which is too 
infamous to be here set out, and during all of said time has 
continued to curse and abuse and scold plaintiff and to 
compel her to work out upon oook wagons for a living, and 
when plaintiff would be sick and unable to do work, the de- 
fendant would compel her by force to do work, and has time 
and again since said date and very recently too, told this 
plaintiff to take her brats and leave and never come back, 
and has frequently threatened to kill this plaintiff, and plain- 



MITCHELL V. MITCHELL. 433 

Aug. 1905] Opinion Per Mount, C. J. 

tiff believes that said defendant will put his threats into 
execution and so thoroughly afraid of said defendant haa 
this plaintiff become that, on or about the 1st day of July, 
1903, while defendant was making his vile and vicious 
threats, this plaintiff was compelled to and did take the two 
younger children and leave the defendant's abode and has 
ever since said time stayed away from defendant for the 
reason that she cannot live with him, for the further reason 
that she is afraid for her life and that of her children." 

The necessary conclusion from the facts found is that the 
respondent's life was rendered burdensome. The finding of 
the court that respondent believed that appellant would put 
his threats to kill into execution, that she was compelled to 
leave her abode and remain away because she could no longer 
live with appellant, and that she believed the appellant would 
take her life and that of her children, conclusively shows 
that her life was rendered burdensome. It was not neces- 
sary for the court to make a specific finding that the cruelty 
of appellant rendered respondent's life burdensome, when the 
facts found lead irresistibly to that conclusion. 

Appellant next contends that, because the court awarded 
all the real property to respondent, such disposition thereof 
was not a just and equitable ona Under Bal. Code, § 5723, 
the disposition of the property of the parties to a divorce 
case rests largely within the discretion of the trial judge. 
This discretion is guided by the respective merits of the 
parties and the condition in which they will be left by the 
divorce. Where there is but little property, and where there 
is no fault on the part of the wife, and where she is not 
strong and is awarded infant children to be cared for, and 
where the husband is a strong, able-bodied man, and wholly 
at fault, as appear to be the facts here, a just and equitable 
disposition of the property may mean that it should all be 
given to the wife. We find nothing in this case which shows 
that the trial court abused its discretion in respect to the 
distribution of the property. 



434 MITCHELL V. MITCHELL. 

Opinion Per Mount, C. J. [39 Wash. 

In the findings of fact, which were made on February 13, 
1904, the trial court recited that the parties had an interest 
in certain real estate which was of the value of $1,600. In 
the conclusions of law the court stated that the respondent 
was entitled to "the sum of $1,600 out of the real estate^ 
or in lieu thereof all the property described in said findings.*' 
The decree, which was signed on the same day and was filed 
two days later, gave no opportunity to the appellant to comply 
with the alternative stated in the conclusions^ but awarded 
the whole interest in the real estate to the respondent. Ap- 
pellant now complains because no time was fixed by the de- 
cree within which he might pay the sum of $1,600 to the 
respondent and save the real estate to himself. What we 
have said above as to the discretion of the trial court applies 
as well to this contention as to the last ona Furthermore^ 
the record contains nothing to show that appellant desired to 
pay the money in lieu of the real estate at the time the decree 
was made or entered. The appellant may have declined the 
option at the time the findings were made, and thereupon the 
oourt may have made the decree absolute. We must indulge 
all presumptions in aid of the decree and not against it. 

Xo errors appearing on the face of the record, the judg- 
ment is affirmed. 

Hadley, Fullerton, and Dunbar, JJ., concur. 

EuDKiN, Root, and Crow, JJ., took no part. 



VULCAN IRON WORKS v. KENT LUMBER CO. 435 

Aug. 1906] Opinion Per Mount, C. J. 

(No. 5654. Decided August 2, 1906.) 

Vulcan Ibon Works, Appellant, v. Kent Lumbeb 

Company, Respondent} 

Judgment — ^Res Adjudicata — Action on Contract — Same Issub 
Raised by Supplemental Complaint in Fobmeb Action of Replevin — 
Bab. Where, in a supplemental complaint in replevin, the plaintiff 
claimed damages for the expense of shipping and repairing the 
logging engine replevied, a Judgment in favor of the defendant, upon 
finding that the plaintiff had sustained no damages by reason of the 
detention and withholding of the property, is res adjudicata upon a 
subsequent suit between the same parties to recover damages for the 
expense of said shipment and repairs. 

Appeal from a judgment of the superior court for King 
county, Albertson, J., entered March 6, 1905, upon a finding, 
in favor of the defendant, of a former adjudication, after a 
trial on the merits before the court without a jury, dismiss- 
ing an action on contract. Affirmed. 

Benton Embree, for appellant. 
John (7. Barnes, for respondent. 

Mount, C. J. — ^Appellant brought this action to recover 
from respondent for two items under a contract of lease 
entered into between the parties, which items are as follows: 
(1) For the expenses of shipping a logging engine from 
Bamston to Seattle in King county, alleged to be $493.50, 
and (2) for repairs of said engine amounting to $62.34. 
The respondent pleaded a former adjudication, which was 
sustained by the trial court. Plaintiff appeals. 

The facts are not disputed. It appears that the appellant 
in this action, some time in July, 1903, brought an action in 
replevin to recover possession of a certain logging engine, 
and for damages. At the time that action was begun, the 
property was delivered by the sheriff into the possession of 
the plaintiff therein. Thereafter, in September, 1903, the 

1 Reported in 81 Pac. 913. 



436 VULCAN IRON WORKS v. KENT LUMBER CO. 

Opinion Per Mount, C. J. [39 Wash. 

appellant in this action, being the plaintiff in that action, 
filed a supplemental complaint, and alleged damages for 
removing the engine from the woods to Seattle, for unload- 
ing the same from a car, and for repairs to the engine, being 
the same items now sued for in this action. An answer 
was filed by the respondent, denying the all^ations of the 
supplemental complaint. Thereafter, the replevin cause was 
tried before the court without a jury. Upon the trial, evi- 
dence was offered to prove the items set out in the sup- 
plemental complaint, excepting the item relating to the re- 
pairs to the engine, concerning which no evidence was offered. 
The respondent offered evidence to controvert the evidence 
offered by appellant on the items of the supplemental com- 
plaint. After the evidence was all in, the court found that 
appellant had sustained no damages by reason of the de- 
tention and withholding of said property by the respondent, 
and entered a judgment accordingly. No appeal was prose- 
cuted from that judgment. 

Subsequently, appellant brought this action to recover for 
the same items alleged in the supplemental codiplaint in the 
replevin action. The cause was tried to the same court 
and judge who tried the replevin action, and, upon the record 
in that case, the court found that there was a former adjudi- 
cation of the issues in this case, and dL^imissed the action. 
We think these facts clearly show a former adjudication 
of the question in issue, and bring this case clearly within 
the case of Stem v. Washington Nat. Bank, 14 Wash. 511, 
45 Pac. 37. 

The judgment of the lower court is affirmed for the rea- 
sons therein stated. 

Cbow, Eoot, Eudkin, and Fulleeton, JJ., concur. 



GAFFNER v. JOHNSON. 437 

Aug. 1905] Opinion Per Moukt, C. J. 

(No. 6604. Decided August 2, 1905.) 

O. H. Gaffnee, Respondent, v. J. W. K, Johnson, 

Appellant.^ 

Appeabance — Special — ^Waives. A special appearance to dismiss 
an action because of a defective service of summons Is waived by a 
general appearance made without preserving the special appearance. 

Limitation of Actions — ^Accbual — ^By Masteb Against Sebvant 
FOB Indemnity — Payment of Judgment. An action does not accrue 
in favor of a master against a servant on account of injury to a 
third person, caused by the servant's negligence, until the master 
has been compelled to pay the party injured, and under Bal. Code, 
§ 4805, is not barred until two years thereafter. 

Collision — ^Negligence — Evidence — Sufficiency. The evidence 
is sufficient to sustain a finding that the master of a steamer was 
guilty of negligence in colliding with the steamer P, a rival boat, 
when it appeared that he was, at the time, In his pilot house with 
an unobstructed view of the P, which was running on a parallel 
course, two or three hundred feet in advance, that the water was 
smooth, and that under the rules of navigation the P had the right 
of way. 

Appeal from a judgment of the superior court for King 
county, Griffin, J., entered December 10, 1904, upon find- 
ings in favor of the plaintiff, after a trial before the court 
without a jury, in an action brought by a master against his 
servant for indemnity. Affirmed. 

Frank P. Lewis, for appellant 

Baxter & ^Y^lson and A, C. MacDonald, for respondent. 

Mount, C. J. — This action was brought by the respondent 
to recover from his servant certain damages which respondent 
had been compelled to pay on account of negligence of said 
servant. Respondent recovered a judgment in the court be- 
low, and the defendant appeals. 

Respondent was the owner of the steamship Mary F. Per- 
ley, plying between Seattle and Port Orchard. Appellant 
was employed by the respondent as master of said vessel. 

1 Reported in 81 Pac. 859. 



488 OAPPNBR V. JOHNSON. 

Opinion Per Mount, C. J. [39 Wash. 

On November 21, 1899, the steamer Perley, while on her 
voyage from Seattle to Port Orchard, came into collision 
with, and damaged, the steamer Pilgrim, which was an op- 
position boat on the same route. It is charged by the com- 
plaint that the collision and damages were caused by the 
negligent and careless manner in which appellant navigated 
respondent's vessel. It is also diarged that respondent was 
sued by the owner of the Pilgrim, and as a result of the 
suit a judgment was obtained against him on June 27, 1901, 
for the sum of $4-97, on account of the damages sustained by 
said Pilgrim, which amount respondent was required to, and 
did, pay. The answer of appellant denied that the collision 
occurred by reason of any carelessness or negligence on his 
part, and denied that a judgment was obtained against re- 
spondent therefor, and denied that respondent paid the same^ 
and alleged aiErmatively, (1) that the collision was caused 
solely by the negligence of the steamer Pilgrim, and (2) 
that the cause of action against appellant was barred by the 
statute of limitations. The cause was tried to the court 
without a jury, and findings were made in favor of the plain- 
tiff, and a judgment was entered thereon for $497 and costs. 

Appellant contends, first, that the court erred in denying 
a motion to dismiss the action because of a defective aervioe 
of the summons. The reoord shows that appellant made 
a general appearance in the action, after the motion was de- 
nied, without preserving his special appearance. He there- 
fore waived the special appearance^ Larsen v. Allan Line 
Steamship Co,, 37 Wash. 555, 80 Pac. 181, and cases cited. 

Appellant next contends that the action is barred because 
it was not commenced against him until more than three 
years after the date of the collision. The reoord shows that 
a judgment was obtained against the respondent by the own- 
ers of tlie Pilgrim, in June, 1901 ; that in December, 1902, 
respondent brought this action against the appellant Xo 
cause of action accrued to the master, as against the servant, 



GAFPNBR V. JOHNSON. 439 

Aug. 1905] Opinion Per Mount, C. J. 

until the master was compelled to pay the party injured by 
the act of the servant, 20 Am. & Eng. Ency. Law (2d ed.), 
61, 52. The master thereafter had two years within which 
to bring the action. Bal. Code, § 4805. The action was 
well within that time. 

Appellant insists that the evidence is not sufficient to sus- 
tain the judgment After carefully reading the whole rec- 
ord which is filed here, we are of the opinion that the 
appellant oould have avoided the collision; that it was his 
duty to have done so. The collision occurred in the day 
time, the weather was fine, the water smooth. The vessels 
had been running a parallel course, with the Pilgrim some 
two or three hundred feet in advance of the Perley, which 
was upon her starboard side. Under the rules of naviga- 
tion, which also appear in the record, the Pilgrim had the 
ri^t of way, and the Perley was bound to keep out of her 
way. The appellant was in the pilot house of the Perley, 
and he had an unobstructed view of the Pilgrim and her 
movements. We think the trial court was clearly justified, 
under these conditions, in finding that the appellant was 
negligent and careless in ramming the Pilgrim and causing 
her damage. The evidence is also clear to the e£fect that 
the respondent was required to, and did, pay the sum of $497 
on account of the damages which the Pilgrim sustained by 
reason of the appellant's negligence. 

There is no reversible error in the record. The judgment 
is therefore affirmed. 

Hadley, Cbow, Rudkin, and Fullerton, JJ., concur. 



440 ALLEN ▼. McALLISTESL 



2 JSi Opinion Per Mount, C. J. [39 Wash. 



(No. 6401. Decided August 2. 1906.) 

Heney F. Allen, Appellant, v. Chables McAllisteb, 

Respondent} 

Factors — Principal and Agent — Agent Selling on Commission — 
• Note >x)r Advances — Defenses — Negligence in Care of. Goods — 
Failure to Sell as Instructed — ^Ratification — Settlement With- 
out Disapproving Acts — ^Waiver ^of Claim. In an action upon a 
promissory note, given for the amount of advances made by the 
plaintiff, a factor, to whom wool had been consigned by the de* 
fendant for sale on commissions, the defendant cannot set up as a 
defense and counterclaim the negligence of the factor in caring for 
the wool and the failure to sell according to instructions, where it 
appears that the wool had been shipped and the advances made more 
than a year prior to the execution of the note, and any neglect of the 
plaintifC was prior to that time, that the defendant then called on 
the plaintiff, examined the wool, made no complaint and gave orders 
that it be further held, and gave his note on the plaintifTs state- 
ment ot the amount then due, and then waited a year longer before 
making any claim; since he ratified the acts of the factor by falling 
to disapprove of the same within a reasonable time; and in the ab- 
sence o£ evidence of failure of duty after the execution of the note^ 
a verdict should have been directed for the plaintiff. 

Appeal from a judgment of the superior court for Yakima 
county, Eudkin, J., entered April 17, 1903, upon the verdict 
of a jury rendered in favor of the defendant, upon a counter- 
claim, in an action upon a promissory note. Reversed. 

Carr & Preston and TV/iiteon <fe Parker, for appellant. 
n. J. Snively, for respondent. 

Mount, C. J. — This action was brought by the appellant 
to recover a balance of $1,689.09, alleged to be due upon 
a promissory note for $3,556.50. The amended answer of 
respondent admitted the execution and delivery of the note, 
but alleged that it was made without consideration and for 
the accommodation of the appellant, under circumstances 
substantially as follows: That appellant and respondent, 
long prior to the e^sccution of the note, had entered into an 

1 Reported in 81 Pac. 927. 



-AXiLBN V. McAllister. 44.^ 

Aug. 1905] Opinion Per Mount, C. J. 

agreement whereby appellant engaged to sell a certain lot 
of wool for the respondent, on commission; that in pur- 
suance of such agreement, appellant advanced on said wool 
to respondent an amount of money represented by the face 
of the note; that the wool was delivered by respondent to 
appellant, and, at the time of the agreement, there was no 
understanding that the note was to be executed, and that 
subsequently the note was executed without any new agree- 
ment and without consideration. 

As a further defense the answer alleged, that about August 
or September, 1898, the respondent entrusted to appellant 
a large amount of wool, to be sold by appellant upon com- 
mission at San Francisco, California, upon representations 
made by appellant to respondent that appellant was engaged 
in selling wool on commission in said city, and that he was a 
competent and skillful commission merchant and wool factor ; 
that appellant received said wool and undertook to sell it 4 
upon commission; that appellant failed to take proper care 
of said wool and permitted it, through neglect and lack of 
proper care, to become deteriorated in value; that he failed 
to use ordinary care and skill in keeping said wool in proper 
condition for sale, and failed to use ordinary care, skill, and 
diligence in the sale thereof; that he failed to use ordinary 
care in carrying out certain instructions and requests made 
by respondent for the sale of said wool ; that he carelessly 
and negligently held said wool, accumulating heavy charges 
of interest, taxes, storage, etc., and that if appellant had used 
diligence he would have received $6,000 therefor, which 
would have left a balance of $1,511.70 over and above the 
amount appellant had advanced on said wool. Respondent 
prayed for damages for that amount. 

The reply admitted the receipt of the wool for sale upon 
commission, and that, at the time the wool was delivered to 
appellant, there was no agreement for a note for advances 
made, and denied the allegations of negligence and want of 
care in keeping and disposing of said wool. The reply fur- 



442 aUjEN y. McAllister. 

Opinion Per Mouirr, C. J. [39 Wash. 

ther pleaded affirmatively, that shortly prior to tiie execu- 
tion of the note sued on, a full and complete settlement was 
had in respect to all transactions and dealings prior to the 
date of the note, and that, as a result thereof, it was ascer- 
tained that respondent was then indebted to appellant in 
the sum of $3,456.50, and that respondent then and there 
agreed with appellant that, if appellant would advance to 
respondent an additional $100, respondent would then exe- 
cute and deliver a promissory note for the full amount of 
of said indebtedness, plus the said sum of $100 ; that there- 
upon appellant advanced to respondent the sum of $100, 
and respondent executed and delivered to appellant the note 
sued upon ; that the said note was executed with full knowl- 
edge of all the matters set out in the affirmative answer. 
The cause was tried to the court and a jury, and a verdict 
was rendered in favor of respondent for $313.14, upon which 
a judgment was entered. The appeal is from this judgment 
The facts are substantially as follows: The appellant is 
a commission merchant, residing in San Francisco, California. 
The respondent is a wool grower, residing at North Yakima, 
this state. On or about June 1, 1898, the respondent shipped 
from North Yakima, to appellant at San Francisco, about 
40,000 pounds of wool, for sale in the usual course upon 
commissions. When the wool was received by appellant, he 
advanced to respondent $3,000, and paid the freight and 
other charges to San Francisco, in addition to said advance. 
Nothing app^ars to have been done with the wool for more 
than a year, when on September 7, 1899, respondent wrote to 
appellant a letter, as follows: 

"Dear Sir : — As I have not heard from you for some time 
and I seq wool is climbing up a little in price^ I wish to 
know what is the best price you can get for the wool I 
shipjxid you over one year ago. I have about 50,000 pounds 
of wool stored here waiting for a good market, but as I will 
require money to buy hay early this fall, I am investigating 
the best market to dispose of same. The clip is about the 



ALLBN Y. McAllister. 443 

Aug. 1905] Opinion Per Mount, C. J. 

same as last year*s, a little cleaner. I had a few imports 
from the East, but hope the Frisco market is still better. 
Trusting to hear from you soon, I remain, yours truly, Chaa 
McAllister." 

Appellant replied on September 14, 1899, and said: 

"If I were to force your wool for sale today it would 
bring 10% to 11 cents on a basis of 74 per cent shrinkaga 
But you must remember your wool is a good staple wool, and 
will sell for staple wool. ... I therefore do not feel 
inclined to push the sale of your wool at present as I feel 
I can do much better with it ... I can probably 
make a sale of your wool now on hand at a price to yield 
you sufficient means for hay." 

On November 10, 1899, respondent wrote to appellant as 
follows : 

"As I have had no reports from you for some time con- 
cerning the wool, I am getting anxious^ as I expected you 
would have mine sold by this time, as I see the market has 
advanced a little you better sell my clip at your earliest con- 
venience, as the payments for winter hay is coming on soon 
and wo need money. I still have my other clip on hand, 
and may ship to you after the sale of the clip you hare 
already got. Hoping to hear from you soon, I remain, yours 
truly, Chas. McAllister." 

On November 13, 1899, appellant answered this letter as 
follows : 

"I have been expecting daily to sell your wool, and have 
every reason to think I will be successful in making the sale 
within the next few days, when I will advise you at once. I 
think you can safely rely upon my being able to sell within 
the next ten days or two weeks. The market as you say is 
somewhat better than it has been for some time past There 
is now an increased demand, and a slight advance in price. 
You can rest assured that I will obtain the best price pos- 
sible." 

On January 3, 1900, respondent wrote as follows: 

"As I have not heard from you for a long time, and as I 
instructed you to sell my clip of wool in your hands in my 



444 ALLEN V. MCALLISTER. 

Opinion Per Mount, C. J. [39 Wash. 

last letter, as I was in need of mon^, I am wondering what 
is the reason of delay, as I see wool is a fine price in the 
East, but as I have confidence in your judgment in handling 
wools in the beet market, I am wondering if you still expect 
much advance in price within the next month or so. Please 
let me* hear from you, and oblige," 

On January 17, 1900, the appellant replied to the last 
letter above, as follows: 

"Your favor of January 8th received and has my careful 
attention. I have held your wool because I thought I could 
do better with it. I am negotiating with a party in regard 
to your wool, and hope within a few days to be able to render 
you satisfactory returns. The London market opens at same 
price as closing quotations of last sale, which were high, and 
unless the wool market in the East tightens up^ we may ex- 
pect a continuance of good prices for wool. At present, of 
course, things are quiet in the East, as they always are at 
this time of the year ; but woolen goods are selling in large 
quantities at an advance price; and hence everything is in 
favor of obtaining satisfactory prices for wool." 

On April 12, 3 900; the appellant wrote to respondent, 
saying : 

"I regret exceedingly that it has been so long, but in 
holding I have acted as I thought was for your interest I 
will dispose of the wool just as soon as I can obtain what I 
consider its value." 

On June 18, 1900, appellant wrote to respondent as fol- 
lows: 

"The wool market remains dull and quiet both east and 
west, and there has been very little wool sold since the first 
of last January. ... I do not look for any changs 
in the situation until the end of July or August" 

In September of 1900, after the time of the foregoing cor- 
respondence, the respondent went to San Francisco to see 
about his wool. While there he called upon the appellant, 
and they talked over the condition of the wool market, and 
respondent examined his wool and concluded to have it 



ALLEN y. McALLISTER. 445 

Aug. 1905] Opinion Per Mount, C. J. 

scoured, and appellant agreed to advance the money there- 
for, which was afterwards done. Respondent, at the time 
of this conversation, directed the appellant to hold the wool 
tintil the month of February, 1901. At this same time a 
statement was rendered to respondent by appellant, showing 
the amount of advances that had been made up to that time. 
Respondent then secured an additional advance of $100, 
which was added to the balance due. The interest was re- 
duced from seven to six per cent, and the respondent there- 
upon executed and delivered the note sued upon. At that 
time respondent was told that a small part of the wool had 
been sold. Respondent testified upon the trial that he was 
not satisfied with appellant's explanation, but that wool was 
a little low at the time he was down, or he would have atr 
tempted to sell the wool himeslf ; that he was not in a posi- 
tion to redeem the wool just at that time, so the best thing 
to do was to have the wool scoured and leave it in appellant's 
hands. The balance of the wool was afterwards sold at 
short intervals up to June 6, 1902, and the net proceeds 
amounted to $2,593.27, leaving respondent indebted on the 
note at that time in the sum of $1,300.18. 

There is no evidence in the record before us that appellant 
was negligent in the care of the wool, or in the sale thereof, 
after the time the note was given in September, 1900, or that 
appellant after that time failed, neglected, or refused in any 
manner to comply with the request of the respondent to sell 
the wool. If appellant was negligent at all in the discharge 
of any duty which he owed to the respondent, such negli- 
gence occurred prior to the execution of the note sued upon, 
and respondent was fully aware thereof at the time the note 
was given. At the close of respondent's evidence, the ap- 
pellant moved the court for a directed verdict, upon the 
ground that there was no evidence of any failure of duty 
on the part of the appellant subsequent to the execution of 
the note sued on, and that respondent, by the execution of 
the note, is estopped to claim damages prior to that time. 



446 ALLEN y. McALLIST12l. 

Opinion Per Mount, C. J. [39 Waah. 

This motion was denied, and the ruling of the court thereon 
is the first error assigned. 

Bespondent has not appeared in this court He has filed 
no brief, and no argument has been made in his behalf. 
We are of the opinion, upon the record as presented, that 
the trial court erred in refusing the motion for a directed 
verdict. It is true, as stated by the lower court when rul- 
ing upon the motion, that no claim for damages was made 
or discussed at the time the note was given on September 
17> 1900. It is also true that the damages claimed in this 
action had accrued prior to that time, and if respondent had 
actually been damaged by any act or negligence of the ap- 
pellant, he was then fully informed and aware of it and 
should have called the attention of appellant thereto. The 
fact that he did not do so seems to be conclusive of the fact 
that he did not then consider that appellant had violated any 
duty he owed to respondent ; or if respondent did then think 
that appellant had theretofore been negligent in the care of 
the wool or in the sale thereof, his failure to express dis- 
approval must now be held to amount to a waiver of it, and 
a ratification of the acts of the appellant 

If the letters of the respondent can be held to amount to 
an instruction to sell the wool, and if the failure of the ap- 
pellant to sell it as instructed can be held to be a departure 
from tliesc instructions, such departure must be held to be 
ratified because the principal expressed no disapproval 
within a reasonable tima 12 Am. & Eng. En<y. Law (2d 
ed), 653; Kendall t\ Earl (Cal.), 44 Pac 791; Searing v. 
Butler, 69 111. 575; Patrick v. Poie, 117 Mass. 297; Meyer, 
W'eiss (C Co. V. Morgan, 51 Miss. 21, 24 Am. Rep. 617; 
Austin f. Richer, 61 N. H. 97; Woodward v. Suydam and 
fBlydcnhv/rg, 11 Ohio 361. 

The respondent at the time the note was given should have 
expressly disapproved the failure to sell the wool, and stood 
upon such disapproval. Instead of so doing, he impliedly 
ratified the previous acts of his agent by agreeing to the 



Aug. 1905] 



HALL V. WEST ft SLADB MILL CO. 

Syllabus. 



447 



account and giving his note therefor. He then waited mole 
than a year and until it was discovered that the wool would 
•not sell for enough to pay the note. He then, for the first 
time, asserted that the failure to sell prior to the making of 
the note was the cause of loss to him. Under these circum- 
stances, it was the duty of the court to direct a verdict for 
the balance due on the note, viz., $1,300.18, with interest 
at fiix per cent per annum since June 5, 1902. 

The judgment is therefore reversed, and the cause re- 
manded for a judgment in favor of appellant in accordance 
with this opinion. 

FuLLEBTON, Hadlet, and DuNBAB, JJ., concur. 
EuDKiN, EooT, and Obow, JJ., took no part 



(No. 6471. Decided August 2, 1905.) 

R. B. Hall, Respondent, v. West & Slade Mill. Company, 

Appellard} 

Masteb and Sebvant — Negligence — Violation op Statutobt 
Duty — Guabding Machinery — ^Assumption of Risk. The defense 
of assumption of risk is not available to a master where the servant 
is Injured by reason of the master's failing to comply with the fac- 
tory act. Laws 1903, p. 40, requiring operators of mills to place safe- 
guards over cogs, gearings, and shaftings that can be properly safe- 
guarded (Root, Rudkin and Cbow, J J., dissenting). 

Same — Contributory Negligence — Servant Momentarily For- 
QETTiNG Unguarded Set Screw. A mill hand whose duty required 
blm to constantly work about a shafting and who had knowledge 
of an unguarded set screw therein, is not guilty of contributory neg- 
ligence in coming In contact with such set screw, in a moment of 
forgetfulness while lifting a heavy timber, where he did not assume 
the risk of injury therefrom, by reason of the fact that the master 
had failed to comply with the factory act requiring such shafting 
to be guarded. 

Appeal from a judgment of the superior court for Che- 
halis county, Irwin, J., entered July 7, 1904, upon the ver- 

1 Reported in 81 Pac. 915. 



89 447 
r41 68 



e41 
f41 



156 
169 



41 166 
41 863 
f41 401 



41 618 

41 619 

f41 660 




39 447 

f42 234 

42 235 





448 HALL v. WEST ft SLADE MILL CO. 

Opinion Per FuixEanoN, J. [39 Wash. 

dfct of a jury, rendered in favor of the plaintiff, in an action 
for personal injuries sustained by an employee in a mill, 
through coming in contact with a set screw upon a revolving 
shaft AiBrmed. 

/. B. Bridges, for appellant. 
Govnor Teats, for respondent. 

FuLLERTON, J. — The respondent was injured while em- 
ployed in the lumber mill of the appellant, and brought this 
action to recover therefor. He was sucoeesful in the court 
below, and this appeal is from the judgment entered in his 
favor. 

In the lumber mill in question were two parallel lines of 
rollers, located about four feet apart, extending almost the 
entire length of the mill. One set of these, called dead 
rollers, led from the back of the gang edger, and received 
such timber products as were passed through that machine. 
The other set were called live rollers, being kept in motion, 
when in use, by the motive power used to operate the mill 
Tlie device used to connect the rollers with the motive power 
was an ordinary steel shaft, with cogwheels and pinions, 
which extended the entire length of the line of rollers; the 
same being fastened to the frame work in which the rollers 
operated on that side next to the dead rollers before men- 
tioned. The shaft was not one continuous piece, but was 
made up of several sections connected together by means of 
iron bands or collars, held in place by set screws. The shafts 
cogwheels, pinions, collars and set screws were left uncov- 
ered and exposed. 

The respondent was required to work between the two 
lines of rollers. A part of his duty was to take that part 
of the timber products passing through the gang edger which 
was suitable only for laths or wood and throw it over the 
live rollers to the gang saws, which were located on the op- 
posite side of the same. While performing these duties (Hi 



HALL V. WEST ft SLADB MILL CO. 449 

Aug. 1905] Opinion Per Pullebton, J. 

the morning of the 2l8t of August, 1903, the respondent's 
clothing caught on a set screw, which had been allowed to 
project from three-fourths of an inch to an inch from one 
of the coUajB used to splice the shafts and wound around 
the shaft, drawing the respondent down upon it, and between 
it and the frame work which held the rollers, breaking his 
arm between the elbow and shoulder, breaking his collar bone, 
and crushing and maiming the bones of his shoulder, leaving 
him a permanent crippl^. 

To a complaint embodying the foregoing facts, the ap- 
pellant answered, and, after making certain denials and 
admissions, set forth that the respondent had actual notice 
and knowledge, for some two weeks before he was injured, 
that the shafting on which he was injured was in an uncov- 
ered and exposed condition, and that the set screw which 
caught his clothing projected from the collar, and knew, also, 
of the dangers incident to working in such an exposed place ; 
averring that he not only assumed the risk of working in that 
place, but was guilty of contributory negligence in so doing. 
To the defense of assumed risk, a demurrer was interposed, 
and sustained by the court on the ground that the appellant 
had not complied with the act of March 6, 1903 (Laws 1903, 
p. 40), which requires all operators of mills and workshops 
to place safeguards over all such cogs, gearings, shaftings, 
and the like, that can be properly safeguarded, before putting 
the same into use. 

On the trial the respondent admitted, on cross-examina- 
tion, that he knew for some time prior to receiving his in- 
jury, of the unguarded machinery, and of the fact that the 
set screw on which his clothing caught projected from the 
collar for a considerable distance; testifying also that he 
knew that if it caught his clothing it was liable to injure 
him, and that he came against it in a moment of forgetr 
fulness while handling a heavy piece of timber. A motion 
for nonsuit was interposed at the conclusion of the respond- 

29-4r9 WASH. 



450 HALL y. WEST ft SLADE MILL CO. 

Opinion Per f^msBTON, J. [39 Wash. 

ent'a case to the jury, which the trial judge overruled. The 
judge also refused to instruct the jury to find for the ap- 
pellant on the ground that the respondent had assumed the 
risk, but instructed them to the effect that the appellant 
could not claim the benefit of the common law doctrine of 
assumed risk, for the reason that the appellant had not safe- 
guarded the shafting on whidi the respondent was injured, 
as it was required to do by the mandate of the statute above 
cited. 

The several rulings of the trial court to the effect that the 
defense of assumption of risk was not available to the ap- 
pellant, as against the respondent's cause of action, consti- 
tute the first error assigned, and it is to this question that 
the arguments of counsel are mainly directed. The rule as 
announced by the trial court is in accord with the decision 
of this court in the case of Green v. Western American Co., 
30 Wash. 87, 70 Pac. 310, and unless that case is to be over- 
ruled, it is controlling on the question here. The appellant 
urges that it should be overruled, contending that it is neither 
supported by the better reasoning nor by the weight of au- 
thority. But after further consideration, we are not con- 
vinced that the case is unsound in principle, or that it vio- 
lates any rule of public policy. It is not necessary herc^ 
however, to state the reasons on which the decision rests. 
This is ably done by the judge who announced the opinion in 
the case, and by the distinguished judge from whom he so 
lengthily quoted. But we do not wish to be understood as con- 
ceding that the case is without authority in its support. While 
it may be true, as the appellant contends, that the weight 
of authority is against it, yet we find it supported by courts 
respectable in numbers as well as in ability. In addition to 
those cited in the case itself, the following may be consulted: 
Monteith v. Kokomo Wood Enameling Co., 159 Ind. 149, 
64 N. E. 610, 58 L. E. A. 944; Sipes v. Michigan Starch 
Co. (Mich.), 100 X. W. 447; Davis Coal Co. v. Polland, 
158 Ind. 607, 62 N. E. 492, 92 Am. St. 319; Litchfield 



HALL Y. WEST ft SLADE MILL CO. 451 

Aug. 1905] Opinion Per Fullerton, J. 

Coal Co. V. Taylor, 81 111. 590 ; Catlett v. Young, 143 111. 
74, 32 N. E. 447; Durant v. Lexington Coal Min. Co., 97 
Mo. 62, 10 S. W. 484; Landgraf v. Kuh, 188 111. 484, 59 
N. E. 501 ; Lore v. American Mfg. Co., 160 Mo. 608, 61 S. W. 
678; Henderson v. Kansas City, 177 Mo. 477, 76 S. W. 
1045 ; Greenlee v. Southern R. Co., 122 N. C. 977, 30 S. E. 
115, 65 Am. St. 734, 41 L. E. A. 399 ; Kilpatrich v. Grand 
Trunk R. Co., 74 Vt. 288, 52 Atl. 531, 93 Am. St. 887. 
In some of the cases above cited, particularly those from the 
courts of Illinois and Indiana, no distinction seems to be 
made between the doctrine of assumption of risk and of con- 
tributory negligence, but the facts of the cases, as well aa 
the language of the courts, support the doctrine for which 
the Green case contends. We conclude, therefore, that the 
trial court did not err in holding that the doctrine of assump- 
tion of risk was not available to the appellant as a defense to 
the respondent's cause of action. 

The appellant next contends that the court erred in re- 
fusing to rule, as a matter of law, that the respondent was 
guilty of contributory negligence. All that the evidence 
shows on this question is that the respondent continued in 
his work after he had knowledge of the fact that the collar 
and set screw which caused his injury were uncovered. But 
it will hardly do to say that an employee is guilty of con- 
tributory negligence for merely working in a dangerous place 
when he does not assume the risk of injury tor working 
therein. It is true that in such cases contributory negligence 
and assumption of risk approximate, and it is. difficult to 
draw a line between them, but we think that, to convict an 
employee of contributory negligence for working in a place 
where he does not assume the risk of injury, it must be 
shown that he did not use care reasonably commensurate 
with the risk to avoid injurious consequences ; in other words, 
that it was some negligent act of his own that caused his 
injury, and not alone the dangers of his situation. Narror 
more v. Cleveland etc. R. Co., 96 Fed. 298, 48 L. R. A. 68. 



452 HALL V. WEST ft SLADE MILL CO. 

Dissenting Opinion Per Root, J. [39 Waah. 

Appellant's requested instruction Xo. 3 was properly re- 
fused for the reason that it assumed that the appellant had 
furnished the respondent with a reasonably safe place in 
which to work, the very question at issue. The other as- 
signments of error are met by what is said on the questions 
of assumption of risk and contributory negligence. 

The judgment is affirmed. 

Mount, C. J., Habley, and Dunbar, JJ., concur. 

Root, J. (dissenting) — Xotwithstanding the profound re- 
spect which I entertain for the writer of the foregoing opin- 
ion and for my associates whd concur therein, I cannot escape 
the conviction that they have, in this instance, fallen into 
error ; and as I regard the error radical and susceptible of 
far-reaching, detrimental effects, I feel constrained to dissent, 
and to express my views upon the main question involved. 

The majority opinion, upon the question of assumed risk, 
is based upon what this court said in Green v. Western 
American Co., 30 Wash. 87, 70 Pac. 310; and what was 
there said upon said subject was based upon the case of 
Narramore v. Cleveland etc. R. Co., 96 Fed. 298, 48 
L. R. A. 68, wherein it was held that a defendant could not 
plead, or avail himself of the defense of, assumed risk, in 
an action by a servant for damages caused by the neglect of 
the master to comply with the provisions of a statute. In 
other words, it held that the principle of Volenti non fit in- 
jicria does not apply where a statute is violated, even though 
the statute does not so expressly provide. For the sake of 
brevity I will refer herein to this proposition as the '^Narra- 
more doctrina" 

In the case at bar the trial court held, and respondent 
contends, that the act of March 6, 1903 (Laws 1903, p. 40), 
commonly known as the "Factory Act," cut off the defense 
of assumed risk where a servant sues for damages caused by 
dangerous machinery left exposed in violation of said statute. 
It is conceded that this respondent could not recover were 



HALL V. WEST & SLADB MILL CO. 453 

Aug. 1905] Dissenting Opinion Per Root, J. 

it not for the factory act. It is admitted that "assumptioK 
of risk" would be a perfect defense herein but for said stat- 
ute. Under the law of this state, up to the time said statute 
went into effect, said defense could be interposed in a case 
comprising the facts of the case at bar, and would consti- 
tute a complete bar to recovery. All of this is conceded by 
respondent herein. But it is contended that said factory act 
changed the law so that now a defendant cannot interpose 
said defense to such an action. As it is conceded that the 
change has been produced by this statutei, let us examine it. 
Every effect must have a cause. If this statute has destroyed 
the defense of assumed risk, we will, of course, find therein 
the cause that has produced that effect. Here is the statute: 

"An Act providing for the protection of employees in fac- 
tories, mills or workshops where machinery is used and pro- 
viding for the punishment of the violation thereof. 

**Be it enacted by the Legislature of the State of Washington: 

"§ 1. That any person, corporation or association, operat- 
ing a factory, mill or workshop where machinery is used, 
shall provide and maintain in use proper belt shifters or 
other mechanical contrivances for the purpose of throw- 
ing on or off belts or pulleys, proper safeguards for all vats, 
pans, trimmers, cut-off, gang edgers and all other saws that 
can be guarded advantageously, planers, cogs, gearings, belt- 
ing, shafting, couplings, set screws, live rollers, conveyors, 
manglers in laundries and machinery of other or similar 
description. Exhaust fans of suflScient power shall be pro- 
vided in the discretion of the commissioner of labor for 
the purpose of carrying off dust from emery wheels, grind- 
stones and other machinery creating dust, where same is 
operated in an enclosed room or place. If a madiine or any 
part thereof is in a dangerous condition, or is not properly 
guarded, the use thereof is prohibited, and a notice to that 
effect shall be attached thereto. Such notice shall not be 
moved until the machine is made safe and the required safe- 
guards provided. 

"§ 2. All hoistways, hatchways, elevator wells and wheel 
boles, as well as fly wheels and stairways in factories, mills, 
workshops, storehouses, warerooms or stores, shall be securely 



454 HALL Y. WBST ft SLADE MILL CO. 

Dissenting Opinion Per Root, J. [39 Wash. 

fenced, enclosed or otherwise protected and due diligence 
shall be used to keep all such means of protection closed, 
except when it is necessary to have the same open, that the 
same may be used. 

"§ 3. That any person, corporation or association oper- 
ating a factory, mill, or workshop where machinery is Ubcd, 
shall provide in each workroom thereof proper and sufficient 
means of ventilation. 

"§ 4. Any person, corporation or association who violates 
or omits to comply with any of the foregoing requirements 
or provisions of this act, shall be guilty of a misdemeanor 
and upon conviction thereof shall be punished by a fine of 
not less than twenty-five nor more than one hundred dollars, 
or by imprisonment for not less than fifteen days nor more 
than ninety days. 

"§ 5. A copy of this act, together with the name and 
address of the commissioner of labor printed in a legible 
manner, shall be kept posted in each department of every 
factory, mill or workshop and in the office of every public 
and private work, upon the employer or his agent or supei- 
intendent being supplied with sufficient copies thereof by the 
commissioner of labor." 

Having read the statute, let us ask some questions as to 
its contents. Does it say that '^assimied risk'' shall not be 
permitted as a defense where a violator of the statute is sued 
by a servant injured by reason of such violation I No. Does 
it say anything about "assumed risk?" No. Does it say 
anything about defenses of any kind ? No. Does it directly 
or indirectly say anything about actions for personal in- 
juries ? Na Does it say that the penalty therein provided 
may be augmented by depriving the defendant in a damage 
case of the defense of assumed risk and thereby mulcting 
him in damages? Nothing of the kind. Does it say any- 
thing about civil liabilities or actions? Nothing. It is a 
criminal statute. Its provisions are dear and easily under- 
stood. Its language is plain. Its penalty is definite and 
expressed in unmistakable terms. 

The purpose of a statute is to put in definite, concrete 



HALL V. WEST & SLADB MILL CO. 455 

Aug. 1903] Dissenting Opinion Per Roor^ J. 

enduring form the intention and decision of the state (acting 
through its lawmaking department) as to what the law shall 
be upon the subject-matter of such statute. That intention 
and that decision axe expressed by, and must be gathered 
from, the language used. If the language be vague, ambigu- 
ous^ indefinite, or uncertain, it then becomes the duty of the 
courts to construe it. If said language is susceptible of two 
or more oonstructianfl^ the court may consider the general 
purpose of the statute, the evil (if any) sought to be cor- 
rected, and any other matters that will aid in arriving at 
the meaning the statute-makers intended to convey by the 
language employed. But if the language is plain and un- 
equivocal, there is then no room for construction. The lan- 
guage must then be understood as having its usual and 
ordinary significance. The language of this factory act is 
dear, plain, and without ambiguity. Its meaning can be 
readily understood. When the legislature attempts to change 
the law of the state upon a given subject, by creating a stat- 
ute covering such matter, the citizens of that state have a 
right to look to the language of such statute for the change 
intended and effected. The extent of the change must be 
ascertained from the terms of the statute itself. The court 
which gives to a statute a meaning which none of its terms 
sustain, is thereby creating law — a thing the court has no 
right to do. 

Applying the foregoing facts and principles to the case 
at bar, it will be seen that there is no authority for holding 
that this statute destroyed the defense of assumed risk in a 
case of this kind, or any kind. There is nothing in the title 
or body of the statute expressing or indicating any sudi pur- 
pose. It being conceded that the defense would still be valid 
were it not for this statute, and it being shown that the 
statute does not mention or refer to the matter in any manner 
whatever, it would seem to be logically demonstrated that no 
change was made. It is axiomatic that a thing cannot be 
changed unless something changes it. It would seem to be 



456 HALL y. WEST ft SLADE MILL CO. 

Dissenting Opinion Per Root, J. [39 Wash. 

equally evident that a rule of law is not changed by a statute 
that does not mention, refer to, or in any manner deal with, 
said rule of law. If the legislature had intended this statute 
to cut off the defense of assumed risk, it could easily have 
placed therein language to evidence that intent It did not 
do so. It gave no expression whatever of any sudi purpose. 
How this court can find that the legislature intended by this 
statute to defeat this defense, when the statute contains not 
a word indicating such an intention, is a query to which I 
have received no satisfactory answer. 

Congress, in enacting a law requiring certain classes of 
railroad companies to use automatic cai-couplers, expressly 
provided that the servant should not bo deemed to have as- 
sumed the risk where the master violated said statuta To 
out off this defense, Congress evidently deemed it necessary 
to expressly enact a provision to accomplish said result. It 
seemed to deem some expression of its intentic>n essential 
to effectuate such purpose. Numerous legislatures have 
deemed it necessary, in order to prevent assumption of risk, to 
expressly provide therefor by statute. Code of Iowa (1897), 
§§ 2071, 2492 ; Laws of Texas, 1891, ch. 24, p. 25 ; Laws of 
Florida, 1891; Laws of Wyoming, 1890-91, ch. 28, p. 141 j 
2 Bums' Ann. Ind. Stats. (1901), § 7087, subd. 5. I think 
our legislature would have done the same had it intended to 
accomplish the result mentioned. 

If anything further were necessary to show that the legis- 
lature did not intend to cut off this defense, it may be found 
in the history of this legislation. The bill which became 
the factory act was introduced in the .legislature at the same 
time with another bill expressly providing for the cutting 
off of the defense of assumed risk in this kind of an action. 
This bill was kno^vn as the "assumed risk bill." It and the 
factory bill were before the same legislature at the same 
time. The factory bill was passed; the assumed risk bill 
was defeated. Now this court is asked to do what the l^is- 
lature refused to do. If its originators believed that the 



HALL V. WEST & SLADE MILL CO. 457 

Aug. 1905] Dissenting Opinion Per Root, J. 

factory bill would have the effect, when enacted, of cutting 
off assumed risk, why did they introduce a separate bill for 
that express purpose ? If the legislature intended to pre- 
vent the plea of assumed risk, why did it not pass the bill 
then before it providing for that very purpose ? Why did it 
defeat that bill if it desired its contents to become the law ? 
The passage of the assumed risk bill, or the incorporation of 
its substance in the factory bill, would have been a natural 
course to have pursued had the legislature intended to pre- 
vent the defense in question. In the face of a record like 
this, we are asked to hold that the legislature intended the 
factory act to cut off this defense — ^that it intended the 
courts to hold that the proposition which it defeated should 
be read into a separate and distinct statute, passed at the 
same session, which statute neither mentions nor refers to 
the matter in any manner whatever. I cannot bring myself 
to believe that the legislature intended to be considered as 
having enacted a proposition which its record shows to have 
been before it for consideration and to have been voted down. 
But several contentions are made by respondent and by 
the few courts adhering to this doctrine, in its support. First : 
It is urged that the statute would be a ''dead letter" and in- 
effective if it be not given such force. Second : It is argued 
that assumed risk is based upon contract, and that to permit 
such defense in a case like this would be to permit master 
and servant to contract to violate the law. Third: It is 
claimed that the welfare of employees, as a class, requires 
such an effect to be accorded the statute. Fourth : It is in- 
sisted that this court is committed to this doctrine by reason 
of its decision in the case of Green v. Western American Co., 
supra. It will be seen that th'eee arguments fail to meet the 
proposition that the factory act does not assume to make 
any change in the pre-existing law as to assumed risk. Every 
one of these arguments ignores this proposition. None of 
them can prevail against this material, indisputable fact, 
which stands at the threshold of this inquiry. 



458 HALL Y. WEST ft SLADE MILL CO. 

Dissenting Opinion Per Root, J. [39 Wash. 

Let US notice these arguments seriatim. The oontention 
that the court must accord this effect to the statute or other- 
wise the evident purpose of the statute (to make the working 
place of employees as safe as possible) will not be attained, 
is an argument; the impropriety of which is readily apparent. 
In order to make the statute effective this court is asked 
to import a provision which the legislature never placed 
therein. The statute is penaL The penalty for violating 
its terms is clearly expressed. But we are told that this 
penalty is not sufficient to make mill owners obey the statute. 
We are told that it will be a '^dead letter" unless this court 
adds to the penalty by taking from a violator the benefit 
of the defense of assumed risk. Hie size and character of 
the penalty of this statute were matters for th^ legislature 
to determine. It did so. For this court to say that the l^is- 
lature exercised poor judgment and did not prescribe a pen- 
alty sufficient to make the statute respected and effective, 
would be to indulge in a criticism upon a coordinate branch 
of the government concerning a matter resting peculiarly in 
its province. For this court to attempt to remedy an alie«»ed 
ineffective statute by adding thereto, or importing therein, 
a provision not placed there by the legislature^ would be a 
clear ease of usurpation. Suppose the trial court had made 
a formal order to the effect that there should be added to the 
factory act the following words, to wit: "No mill owner 
when sued by an employee for damages caused by the viola- 
tion of this statute shall be permitted to plead the defense of 
assumed risk." Would this court uphold sudi an order! 
If it should do so, would anybody doubt that its action was 
in defiance of all constitutional authoritv? Xow, the su- 
perior court did not by an order add, or assume to add, those 
words to the statute. But it did something which had the 
same result. It gave the statute the force that it would 
have if those words were incorporated therein. It gave to 
the statute a meaning which its language did not justify 
and whidi it could only have by treating it as containing 



HALL V. WEST & SLADE MILL CO. 459 

Aug. 1905] Dissenting Opinion Per Root, J. 

the words above referred to. If a court can give a statute a 
meaning and effect which none of its language conveys or 
produces, there would seem to be no logical reason why it 
might not order the statute amended by adding the words 
which would express such meaning and effect. That the 
court cannot legnUy add language to a statute will, of course, 
be conceded. It would seem to be equally clear that the 
court cannot add to a statute a meaning and effect whidh is 
not therein expressed in any form whatever. 

In justice to the trial judge it should be stated that the 
record shows that he based his rulings regarding this ques- 
tion upon the case of Oreen v. Western AmericwA Co., supra, 
1i this court holds this statute to have the effect respondent 
contends for, it will, in my opinion, be a dear case of judicial 
legislation. So long as a statute is constitutional, it is not 
for the court to say that the legislature failed to accomplish 
what it desired, or what it ought The moment the court 
does this, it transcends its constitutional powers. We are 
to deal with statutes as enacted; not as we may think th^ 
ought to be. If the court can add to or take from, or otlier- 
wise modify, the valid provisions of one statute, it can do 
the same with any other statute. If this court can legally 
add to this statute the effect sought by respondent, there 
would seem to be no reason why it might not add to any 
statute any provision (in effect) which in its opinion would 
be an improvement on the work of the legislature. The con- 
fusion to follow the adoption of such a doctrine can be readily 
foreseen. Hence it must bo evident that this court can give 
no heed to the argument that this statute would be ineffective 
and a "dead letter" unless construed to have an effect which 
its terms are incapable of producing. Such argument is 
proper to be addressed to the legislature. It invokes the 
exercise of legislative power. The constitution has not vested 
the courts of this state with such power. 

The argument that to permit the defense of assumed risk 
in this case would be to allow master and servant to contract 



460 HALL V. WEST & SLADE MILL CO. 

Dissenting Opinion Per Root, J. [39 Wash. 

for a violation of the law, is clearly illogical and unsound. 
Under the common law, as it existed in this state at the 
time of the passage of the factory act, it was the duty of 
the master to give the servant a reasonably safe place in 
which to work. A master permitting a servant to work about 
a dangerous set screw, situated as was the one that injured 
this respondent, would be clearly guilty of negligence. Under 
this statute, he is likewise guilty. As applied to the facts of 
this case, the statute made no change in the duty of appellant 
to respondent. It is conceded that appellant could have 
pleaded "assumed risk" under the common law. If it was 
not unlawful for the servant to assume the risk when the 
common law required the master to furnish him a safe place, 
why is it unlawful because the statute makes the same re- 
quirement? The duty of the master is the same in each 
instance. A duty imposed by common law is just as binding 
as one imposed by statute. Langlois^ v. Durvn Worsted Milh 
(R. L), 67 Atl. 910. 

A contract void because obnoxious to a statute would also 
be void if contravening an established principle of the com- 
mon law. A contract to commit a felony would be void 
regardless of whether the contemplated crime were an infrac- 
tion of statute or the common law. The converse of each 
of these propositions is equally true. A contract that is not 
inimical to a given principle of the common law is not an- 
tagonistic to the same principle when enacted as a statute. 
An executory contract to violate a valid statute would not 
be enforcible. It would make no difference whether it were 
a penal statute or otherwise. But such contract would be 
virtueless not merely because it provided for violating a 
statute, but because it contemplated the violation of the law. 
A contract to violate an unconstitutional statute would not 
be void. It is not the form of the law that makes an agree- 
ment to violate it impotent; it is the fact that it is the law. 

If the duty of the master to furnish a safe place, and the 
obligation of the servant to assume open and apparent dan- 



HALL V. WEST & SLADE MILL CO. 4.QI 

Aug. 1905] Dissenting Opinion Per Root, J. 

gers, were solely matters agreed to by them in the contract 
of employment^ it would make no difference whether these 
obligations were imposed by statute or common law. In 
the absence of statutory restriction — and the statute in quesr 
tion has none — the same defenses are available in these 
actions as were permitted before the statute was enacted. 
The argument of respondent upon this point is based upon 
the theory that "assumed risk" rests upon contract This 
theory is correct, if at all, only in a qualified sense. Instead 
of arising from the contract of employment made by the par^ 
ties, it is based upon broader grounds, considerations involv- 
ing the contract, public policy and the status which the parties 
acquire by reason of the employment and the conditions sur- 
rounding the working place. The doctrine Volenti non fit 
injui'ia — "One who knowing and appreciating a danger vol- 
imtarily assumes the risk of it" — is so in accord with com- 
mon sense and right that its application cannot be deemed 
to have been denied unless by language clearly evidencing 
such an intention. 

When a master and servant enter into a contract of em- 
ployment, a condition or status is created which the law deems 
a matter of public concern. Therefore, the law steps in and 
imposes certain reciprocal duties and obligations upon each 
of the contracting parties. It says to the master: "Public 
policy requires that you give the servant a reasonably safe 
place in which to work ; this obligation is therefore imposed 
upon you." It says to the servant: "Public policy requires 
that you use your faculties, as an ordinarily prudent man 
would, to avoid injury." It says further to the master: "If 
you negligently fail to keep the servant's working place rea- 
sonably safe, you must respond in damages if such negli- 
gence causes him injury." It says further to the servant: 
'Tou must assume such dangers of your working place as 
are open and apparent to you." The theory of respondent 
is that all of these matters are read into the employment 
contract; that they are parts and parcels of the employment 



462 HALL Y. WEST & SLADE MILL CO. 

Dissenting Opinion Per Root, J. [39 Wash. 

agreement- This is not tlie ease. They are not porticms 
of the agreement They are more than that They are obli- 
gations placed upon the respective parties by operation of 
law, and are so imposed from considerations of public policy. 
The state, having an interest in the safety and health of its 
citizens^ provides that while employed as servants they must 
be furnished with reasonably safe working places. It also 
recognizes the fact that many kinds of work must be neces- 
sarily done in places where dangers cannot be entirely elimi- 
nated. Men who work in such places ordinarily get hi^er 
wages by reason of said dangers. The work must be done. 
Somebody must do it The law says to the servant: "Yes, 
you may contract to work in the presence of those known 
dangers, but it is only fair that you assume the risk of 
injury therefrom; therefore, this liability is placed upon 
you.'* The servant does not agree to this burden as a part 
of his contract It is not a matter of his agreement It 
is an obligation imposed upon him by the law. It becomes 
applicable to him because of his statiLS as a servant working 
in such a place. 

That it is not a part of his contract, in the ordinary 
sense, may be seen from the fact that he and the master 
cannot make a valid agreement for him not to assume the 
open and apparent dangers, any more than they can make 
a binding agreement releasing the master from the duty of 
furnishing a safe place. These are reciprocal duties of master 
and servant, which cannot be made the subject of contract^ 
and the law sanctions no contract releasing either from these 
duties by law imposed upon them respectively. They were 
imposed by the common law and have not been changed by 
the statuta If assumed risk were a matter of contract, it 
could, by agreement of the parties, be dispensed with in any 
given case. So could the duty to furnish a safe place imder 
common law; but the law never sanctions an agreement for 
such waiver. But it does release each under certain circum- 
stances. Foi instance, a servant working xmder a master^s 



HALL V. WEST & SLADE MILL CO. 463 

Aug. 1905] Dissenting Opinion Per Root, J. 

promise to repair is exempted from assuming the risk ; and 
a master is exempted from liability for injuries caused by 
dangers which to the servant are open and apparent Neither 
of these exemptions occurs as a consequence of agreement, 
but they are the result of the law applicable to the given 
conditions. 

To show that the assumption of risk is not merely a matter 
of contract^ let us use the following illustration: A servant 
agrees to work for five years at a given compensation in a 
mill where he knows that the machinery is not guarded. 
After working there a year, the legislature enacts a statute 
requiring that machinery to be guarded and expressly cutting 
off the assumption of risk and the right to plead the sama 
The master ignores the statute and the servant is injured 
by reason of said neglect He sues. The master pleads 
"assumed risk." The servant sets up the statute. The 
master says the statute is unconstitutional, because it imr 
pairs the obligation of his contract with the servant, wherein 
the latter impliedly agreed to assume the risk. Would a